R v Eastman (No 41)
[2018] ACTSC 175
•14 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 41) |
Citation: | [2018] ACTSC 175 |
Hearing Dates: | 26 March 2018; 4 April 2018; further written submissions filed by the defence on 16 May 2018 and by the prosecution on 18 May 2018 |
DecisionDate: | 14 June 2018 |
Before: | Kellam AJ |
Decision: | See [49] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence pursuant to s 43 of the Evidence Act 2011 (ACT) as evidence of a prior inconsistent statement of witness – where evidence admitted pursuant to s 43 the hearsay rule does not apply to the evidence pursuant to s 60 of the Evidence Act 2011 (ACT) – circumstances surrounding the making of the representation are relevant to determining whether the happening of the asserted fact is ‘fresh in the memory’ of the person making the representation pursuant to s 66(2) of the Evidence Act 2011 (ACT) – inconsistency in the evidence affected its probative value – evidence excluded pursuant to s 135 of the Evidence Act 2011 (ACT) because the low probative value of the evidence is substantially outweighed by its prejudicial effect |
Legislation Cited: | Evidence Act 2011 (ACT) ss 38, 43, 56, 60, 66, 101A, 102 and 106 |
Cases Cited: | Clay (a Pseudonym) v The Queen [2014] VSCA 269; 245 A Crim R 470 Graham v The Queen [1998] HCA 61; 195 CLR 606 R v XY [2010] NSWCCA 181; 79 NSWLR 629 |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused) |
| Solicitors ACT Director of Public Prosecution (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 111 of 1992 |
KELLAM AJ:
By written submissions filed on 13 March 2018 the prosecution argues that unless the defence calls Mr Trenery the evidence of Witness B would be inadmissible hearsay.
By written submissions filed on 26 March 2018 the defence has stated that it proposes to call Mr Trenery in the event that the prosecution refuses to call him.
Notwithstanding the indication from the defence that it proposes to call Mr Trenery the prosecution submits that Mr Trenery’s evidence is nevertheless irrelevant and thus is inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) (the ‘Act’). Thus it is submitted that Mr Trenery cannot be called to give admissible evidence and the evidence of Witness B cannot be admitted into evidence. The evidence of Mr Trenery given on the voir dire is to the effect that sometime in 1989 or 1990 he disposed of a single-shot Lithgow rifle and not a Ruger 10/22. It is submitted that in such circumstances the evidence of Mr Trenery is irrelevant to any issue in the trial.
Witness B gave evidence on the voir dire that he had known Mr Trenery for some time prior to 2006. On a Saturday in 2006 he was having a drink with Mr Trenery at a hotel on Sydney Road in Fawkner, Victoria, Witness B gave evidence that:
…I had spoken to him and had a drink, and then I went and played the poker machines for a while, and I returned to get another drink, and I was going to join them, and I heard him state that the gun used to shoot Winchester that he - he brought it back from Canberra and that he threw it in the family - the dam on the family farm in Gippsland…. I was aware of the fact that his brother had a farm in Gippsland.
The defence argues that the evidence of what Witness B says Mr Trenery said is admissible, first as a prior inconsistent statement of Mr Trenery (a non‑hearsay purpose pursuant to s 60(1) of the Act) or alternatively under s 66 of the Act.
On the face of it the evidence given by Mr Trenery on the voir dire has no relevance to the issues under consideration at this trial. However, the defence argues that it is not bound by Mr Trenery’s denial that he disposed of the gun used to shoot Mr Winchester or by his evidence that the gun he disposed of was a Lithgow and not a Ruger 10/22. It is submitted that it is clear from the evidence given upon the voir dire that Mr Trenery had lied to police about his dealings with firearms, multiple trips to Canberra, and had the opportunity to dispose of the murder weapon.
The argument advanced by the defence that the evidence of Witness B may be capable of establishing a prior inconsistent statement on the part of Mr Trenery, and thus would become admissible, is not entirely clear‑cut. First, as is clear the prosecution does not intend to call Mr Trenery to give evidence. If the defence calls Mr Trenery, it is difficult to see how an allegedly prior inconsistent statement could be put to him under s 43 of the Act without obtaining the leave of the court to cross-examine him. It may be that by reason of s 38(1)(c) of the Act that an application for leave would have some prospects of success, but that cannot be guaranteed.
In the alternative the defence argues that the statement which Witness B overheard Mr Trenery make to the effect that he had transported to Gippsland the gun which had been used to kill Mr Winchester , is admissible pursuant to s 66 of the Act which states as follows:
S 66 Exception – criminal proceedings if maker unavailable
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If the person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a)the person; or
(b)a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the happening of the asserted fact was fresh in the memory of the person who made the representation.
(3)In deciding whether the happening of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a)the nature of the event concerned; and
(b)the age and health of the person; and
(c)the time between the happening of the asserted fact and the making of the representation.
First, the defence intends to call Mr Trenery. Thus it is argued that s 66(1) of the Act is met as Mr Trenery is ‘available to give evidence about an asserted fact’, the asserted fact here presumably being the statement overheard by Witness B. Secondly, it is argued that the evidence is admissible under s 66(2) of the Act.
Notwithstanding the prosecution submission that Mr Trenery gave no evidence of relevance upon the voir dire the defence argues that as he is available to give evidence the evidence of Witness B is admissible. Section 66 provides that the hearsay rule does not apply to evidence of a representation given by (a) the person (in this case Mr Trenery) or a person who saw or heard the representation being made (in this case Witness B) provided that when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation (Mr Trenery). Section 66 only applies if the person who has made the representation has been, or is to be, called in the proceedings. However, it is clear that s 66 does not require the person who made the representation to give evidence of the representation (see R v Brooks(No 3) [2017] NSWSC 261 and Singh v The Queen [2011] VSCA 263; 33 VR 1). Accordingly, leaving aside for the moment the temporal requirement of ‘freshness in the memory’, all that is necessary in this case is that Mr Trenery is available to give evidence and will be called in the proceedings
It is argued on behalf of the accused that whilst what Mr Trenery is said to have said in the presence of Witness B was said in 2006, it is talk of an event that is of such a nature as would render it as ‘fresh in the memory’ in 2006 as it would have been in 1989. It is argued that in such circumstances, Mr Trenery is unlikely to have forgotten about such a matter, even after the passage of sixteen or seventeen years.
On any view the expiration of such a long period of time between the occurrence of the asserted fact (being that Mr Trenery brought the gun that killed Mr Winchester back from Canberra to Gippsland, presumably in 1989) and the assertion of that fact in 2006 is highly relevant. However, the amendments made to s 66 of the Act subsequent to the High Court decision of Graham v The Queen [1998] HCA 61; 195 CLR 606 make it clear that ‘freshness’ should be determined by reference to a wide range of factors and is not confined merely to time. In R v XY [2010] NSWCCA 181; 79 NSWLR 629, Whealy J (with whom Campbell JA and Simpson J agreed) at [79] held:
… the present legislation makes it clear that the context of the phrase “fresh in the memory” no longer is to be taken as an indication that it means “recent” or “immediate”. The expression “fresh in the memory” is now to be interpreted more widely than did the High Court in Graham’s case. No longer is the “core meaning” of the phrase to be interpreted as “essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation”. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account “the nature of the event concerned”. In Graham’s case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered.
There has been some criticism in Victoria of the above approach of the NSW Court of Appeal (see Clay v The Queen [2014] VSCA 269; 245 A Crim R 470, at [45] and [48]). However, that said, the nature of the event, if it happened, is likely to have remained in the mind of Mr Trenery. I accept the argument of the defence in this regard. As for the health of Mr Trenery at the time of the making of the alleged representation, there is no evidence. Certainly on the voir dire he appeared to be in a fragile state health‑wise, but the evidence is that he was still driving trucks in 2006, at which time he was aged 62 years having been born on 21 August 1944.
On balance, I conclude that it can be said that, notwithstanding the long temporal gap between the happening of the asserted fact and the making of the representation in 2006, the asserted fact by reason of its nature was fresh in the memory of Mr Trenery at the time that he is said to have made the representation.
In relation to the argument by the defence that the evidence of what Mr Trenery is said to have said in the presence of Witness B is admissible, the prosecution relies upon the fact that the representation of Mr Trenery upon which the defence relies was made in 2006 and thus in the order of 17 years after the event to which the representation referred. Furthermore, it is argued that Witness B did not advise police of the fact that he had heard Mr Trenery make the representation until 2014 and that that delay is relevant in terms of the reliability of Witness B’s evidence. Whilst that is true, Witness B gave evidence that the trigger for him going to police was the publicity surrounding the setting aside of the conviction of the accused.
In addition to those temporal issues, the prosecution submits that the circumstances under which Witness B heard the representation creates ‘real difficulty’ in terms of context. It is submitted that the evidence of Witness B relates to a conversation which Witness B ‘walked into’ and which was between Mr Trenery and people other than Witness B. The prosecution argues that in such circumstances there is ‘real difficulty with what actually [sic] Witness B is saying in the context and circumstances of when he heard the information’. Whilst each of those contentions has strength, in the end result it appears to me that they are matters for cross-examination of Witness B and go to the weight rather than the admissibility of the evidence.
Insofar as the prosecution submits that Mr Trenery’s evidence, that he disposed of a single-shot Lithgow rifle, is not relevant to any issue in the trial, the defence submits that it is not bound by Mr Trenery’s denial that he disposed of the gun used to shoot Mr Winchester, nor that the gun disposed of was a Lithgow. The defence submits that the relevance of the evidence of Witness B as to what was said by Mr Trenery is that he, according to Witness B, confessed to disposing of the gun used to kill Mr Winchester. Furthermore, Mr Trenery had no known association with the accused, but did have an association with a Mr Cua, a man with a known association with the N’drangheta.
In my view the evidence of Mr Trenery and of Witness B is admissible. It is a matter for the jury as to whether they consider either witness is credible, but on the basis of the material before me I consider that the evidence is sufficiently relevant to be admitted into evidence in the trial pursuant to s 66(2) of the Act.
Valerie Cumberland
It is appropriate at this point to consider whether or not the evidence of previous representations made by Valerie Cumberland, which the defence seeks to have admitted into evidence, are relevant to the issues in contention in relation to Mr Trenery and Witness B.
On 16 March 2018 the defence filed a s 67 notice relating to the proposed evidence of Valerie Cumberland. Ms Cumberland is deceased. The substance of the evidence sought to be adduced by that notice is as follows:
(1)About 1985 or 1986 Ms Cumberland met a girl named Cheryl who was with a big man she knew as Alan, who was a truck driver from Forster. They stayed in the same caravan park as Ms Cumberland at Narre Warren.
(2)Some 1 or 2 weeks before the Winchester shooting Ms Cumberland agreed to travel to Canberra with Alan and Cheryl.
(3)They travelled in Alan's car which was a dark tan coloured sedan, a large car possibly a Falcon, probably less than 10 years old with an automatic transmission.
(4)On the Monday Alan arrived at the flat Ms Cumberland was staying in and was in a desperate hurry to get going. Ms Cumberland left with Alan to return to Melbourne.
(5)After driving for a couple of hours, they pulled over to the side of the road. Ms Cumberland went to the boot of the car and it was open and she saw what she could only describe as a long rifle, possibly two rifles, but maybe a double barrel shotgun.
(6)About a week or two later, Ms Cumberland was informed that Cheryl and Alan had been back in Canberra, and Ms Cumberland realised that it was the same weekend that Mr Winchester was shot.
(7)Ms Cumberland notified Victoria Police.
(8)A couple of days later, Alan came and saw Ms Cumberland in the caravan park. He said police had come around and questioned him about guns and he thought it was Cheryl. He said “Doesn’t matter anyway. They’ll never find them, they’re smashed up, and up at Gippsland.”
(9)A while later Ms Cumberland saw Alan who was driving trucks in Dandenong. He showed Ms Cumberland a new truck that he had just bought.
(10)Ms Cumberland remembered the nickname of Tren or Trenery being used.
On 23 March 2018 the prosecution filed written submissions whereby it objected to the evidence sought to be led pursuant to the s 67 notice dated 16 March 2018.
Subsequently on 28 March 2018 the defence filed an amended notice pursuant to s 67 of the Act. In addition to the undated National Crime Authority (‘NCA’) note referred to in the s 67 notice dated 16 March 2018, the amended notice contained an Affidavit affirmed by Terence O’Donnell on 25 January 2016. Mr O’Donnell is now retired but was previously a barrister who had acted for the accused at various times in the past. His affidavit states that Mrs Cumberland approached him in the street on a date which is not stated, but which can be inferred to be either during or shortly before 1994. Ms Cumberland gave him a brief account of a trip made by her to Canberra between Christmas and New Year 1988-89, and a dealing with her neighbour and her neighbour’s boyfriend, whom she called Alan or ‘Tren’. Subsequently Ms Cumberland provided a more detailed account to Mr O’Donnell of what she had witnessed, the parts upon which the defence seeks to rely is set out in his affidavit in the following terms:
Val Cumberland's account was she was living in a caravan park in Gippsland and became friendly with a neighbour. My recollection is that the neighbour's name was Cheryl and that she had prior convictions for a serious offence. From a Gippsland telephone book she identified ''Tren" as Alan Trenery of Foster. Between Christmas and New Year 1988‑89, Mrs Cumberland was invited to travel to Canberra with Cheryl and Trenery. The father of John Cumberland lived in Canberra and although they had been long separated, it was Mrs Cumberland's intention to visit him. Mrs Cumberland believed that they· would be staying in Canberra for about one week. When they arrived in Canberra they separated and Mrs Cumberland booked into a south Canberra caravan park. The next day, Mrs Cumberland was not pleased when she was told that they were returning that day to Gippsland.
On the return journey, Alan Trenery stopped at the prison near Tumbarumba to visit an inmate. Mrs Cumberland was left at the car. Mrs Cumberland described Alan Trenery's car was [sic] a tan Ford Cortina which had a defective muffler and a boot lid which was secured by wire. Mrs Cumberland stated she was looking for her bag in the boot of the car and then saw a firearm which she had not seen earlier. While she was looking in the boot, Alan Trenery returned and remonstrated with her.
After they returned to the caravan park in Gippsland, Cheryl told Mrs Cumberland that she and Alan Trenery were returning to Canberra. Mrs Cumberland was not invited on the second trip to Canberra.
Trenery and Cheryl returned to the caravan park in Gippsland on the morning of the news of the Winchester murder. ….
Not long afterwards, Alan Trenery, who had not previously shown any sign of wealth or significant income, purchased a new truck. Mrs Cumberland's suspicions were raised and she contacted the local Victoria police. Later Alan Trenery threatened her and warned her against saying anything further. It was only after David Eastman was charged with murder, that Mrs Cumberland decided to disclose the things she had witnessed.
None of the above information, which is referred to by Mr O’Donnell in his affidavit, appears to be direct quotes attributed to Ms Cumberland. Rather, it appears to be Mr O’Donnell’s account of what he was told by Ms Cumberland.
Subsequent to Ms Cumberland’s conversations with Mr O’Donnell, he approached the NCA and repeated Ms Cumberland’s account to the then Chair of the NCA, Mr Sherman. Subsequently Mr O’Donnell was contacted by NCA staff and asked if he would arrange a meeting between Ms Cumberland and an NCA officer, Mr Purchase. Mr O’Donnell introduced Mr Purchase to Ms Cumberland. In his affidavit, Mr O’Donnell said that Ms Cumberland provided an account to Mr Purchase which was generally consistent with the account she had given to Mr O’Donnell. It is unclear whether that account is the account which is referred to in the NCA briefing note which is Annexure ‘A’ to the amended s 67 notice relating to Ms Cumberland.
The prosecution objects to the whole of the evidence the defence seeks to lead in relation to Ms Cumberland’s representations in the s 67 notice. The prosecution submits first, that the representations are not contained in a signed statement but in an NCA briefing record of what Ms Cumberland is alleged to have said to an NCA officer. There is no statement to the effect that the witness is prepared to give that evidence at court, or that she may be liable to prosecution in certain circumstances, nor information provided under oath. It is submitted that it is not even clear whether the apparent representations of Ms Cumberland are recorded verbatim.
In addition the prosecution relies upon the fact that the representations are made five years after the murder of Mr Winchester. It is submitted therefore that the circumstances in which the representations were made, including that there was no obligation for Ms Cumberland to tell the truth, affect the reliability of the representations to the extent that it would be unfair to the prosecution for the evidence to be adduced.
It is argued by the prosecution that, taken at their highest, the representations of Ms Cumberland suggest only that Mr Trenery transported from Canberra to Victoria two rifles, with no information about the type of either of them, or alternatively that one was a double‑barrelled shotgun. The asserted facts occurred at a time that was one to two weeks before the murder of Mr Winchester.
Furthermore, the prosecution points to a number of inconsistencies in the representations of Ms Cumberland which are not explained by the affidavit of Mr O’Donnell that is annexed to in the amended s 67 notice. The affidavit affirmed by Mr O’Donnell in January 2016 contains a summary of his recollection of events in 1994. It should be observed that the defence intends to lead the representations referred to by Mr O’Donnell by calling him to give evidence.
Notwithstanding the fact that the amended s 67 notice contains the additional material referred to by Mr O’Donnell, the prosecution maintains its position that the representations of Ms Cumberland sought to be relied on are irrelevant. The first and most significant matter upon which the prosecution relies is that the representations of Ms Cumberland that relate to her trip to Canberra with Mr Trenery, and her viewing of a weapon or weapons in his car, were all said to have taken place before Mr Winchester was killed.
That representation is contained in the NCA note whereby Ms Cumberland is recorded as saying that the visit to Canberra took place ‘about 1 or 2 weeks before the Winchester shooting’. She told the NCA investigator that she, Cheryl, Mr Trenery and her friend John, left ‘Narrewarren’ [sic] about midnight on a Friday night to go to Canberra, but that on the following Monday they departed. The affidavit of Mr O’Donnell confirms that Ms Cumberland told him that the trip to Canberra took place between Christmas and New Year 1988-89, and that having arrived in Canberra she was told ‘the next day’ that they were returning to Gippsland ‘that day’. According to the representations set out in the s67 notice relating to Ms Cumberland the evidence relates to her seeing a firearm, or firearms, sometime before the murder of Mr Winchester. There are a number of other difficulties in the material relating to the representations of Ms Cumberland, leaving aside for the moment the second‑hand and third‑hand hearsay which appears. Although the defence does not seek to adduce any of [2] on page 2 of the NCA document, it is clear that much of what Ms Cumberland represented to the NCA is based upon the hearsay statements of ‘Cheryl’ and Ms Cumberland’s own speculation. For instance, in [1] on page 2 of the NCA note Ms Cumberland is said to have said:
I cannot recall exactly when but it must have been a week or two later when I spoke to Cheryl. She had made a comment which led me to understand that Alan and her had been back in Canberra. I remember that when she told me I then realised that it was the same weekend that Winchester was shot.
It should be observed that Mr Winchester was shot on Tuesday, 10 January 1989 and not on a weekend. The above passage has no probative value at all. Although the accused does not seek to adduce any of [2] on page 2 of the NCA note, that paragraph is demonstrative of the less than rational speculation in which Ms Cumberland engaged in the course of her discussion with the NCA.
Mr O’Donnell’s affidavit raises further questions about Ms Cumberland’s representations. As pointed out above, Ms Cumberland told the NCA that sometime after she returned to Victoria from Canberra she spoke to Cheryl who ‘had made a comment which led [Ms Cumberland] to understand that Alan and [Cheryl] had been back in Canberra’. On the other hand, Mr O’Donnell reports that after Ms Cumberland’s return to the caravan park in Victoria where she lived ‘Cheryl told Mrs Cumberland that she and Alan Trenery were returning to Canberra’. Mr O’Donnell observed that Ms Cumberland stated that she ‘was not invited on the second trip to Canberra’, and that ‘Trenery and Cheryl returned to the caravan park in Gippsland on the morning of the news of the Winchester murder’. That is a markedly different version from that apparently given by Ms Cumberland to the NCA.
Furthermore, in the NCA record Ms Cumberland is recorded as saying she saw the gun, or guns, in the boot of the car after they had ‘pulled to the side of the road and John [her friend] had a leak’. On the other hand it appears that she told Mr O’Donnell that on the return journey from Canberra ‘Alan Trenery stopped at the prison near Tumbarumba to visit an inmate’. On this version of events Ms Cumberland stated that:
…she was looking for her bag in the boot of the car and then saw a firearm which she had not seen earlier. While she was looking in the boot, Alan Trenery returned and remonstrated with her.
Once again this is a very different version of her sighting of the firearm in the boot of the car. There was no suggestion that Ms Cumberland told the NCA that Mr Trenery had remonstrated with her. In fact Ms Cumberland told the NCA ‘I didn’t think much of it at the time’. That is quite inconsistent with Mr Trenery having ‘remonstrated’ with her, as well as being inconsistent with what she apparently told Mr O’Donnell.
It is not without significance that the evidence appears to be clear that having spoken to Mr O’Donnell, and by his arrangement, Ms Cumberland then spoke with the NCA within a short period of time. The inconsistencies are all the more significant in such circumstances.
A further inconsistency is that Ms Cumberland in her statement to the NCA stated that after she had told police she saw ‘guns in the back of the car’, Trenery told her that the police had come to see him about guns. Ms Cumberland told the NCA that Mr Trenery said to her ‘Doesn't matter anyway. They'll never find them, they're smashed up, and up at Gippsland’. She told the NCA that ‘He then walked off and didn't think that I might have been the one that rang the police’. On the other hand, a different version was given to Mr O’Donnell. She told him, as she told the NCA, that she had spoken to Victoria Police about having seen the firearms. However she told Mr O’Donnell that ‘Later Alan Trenery threatened her and warned her against saying anything further’.
The defence argues however that the prosecution misunderstands the way in which it puts its case. It is not the defence position that the gun (or one of the guns) seen by Ms Cumberland in the boot of Mr Trenery’s car is the murder weapon. Rather, it is submitted that the evidence needs to be seen in the broader context of the evidence of Witness B and Mr Trenery himself as part of the circumstantial strand of the defence case.
The argument advanced on behalf of the accused is as follows. First it is submitted that it would be open to the jury to accept the evidence of Witness B that Mr Trenery did say that he brought back from Canberra the gun that had been used to shoot Mr Winchester and threw it in the dam on the family farm near Foster in Gippsland. Witness B gave evidence on the voir dire that although he was, at the time of the conversation in question, aware that Mr Trenery’s family had a farm, he was not aware there was a dam on it. It is submitted on behalf of the defence that there are numerous inconsistencies in the evidence given by Mr Trenery at the voir dire, and that issues of credit arise in consequence of a number of lies that he told to police in the course of his record of interview on 9 December 1994.
In particular the defence relies upon Mr Trenery’s denial of having had a gun in his boot at the time of his trip from Canberra with Ms Cumberland. Upon the voir dire however Mr Trenery accepted that he knew about the Lithgow rifle before speaking to police in December 1994 and upon the voir dire he stated that he had paid $200 for the Lithgow rifle. The defence argues that the fact that Mr Trenery had an association with Mr Joe Cua, who the defence submits was associated with the Calabrian mafia, is a matter of significance. There is of course no evidence that Mr Trenery’s association with Mr Cua was of a criminal nature.
There are a significant number of problems with the evidence the defence seeks to adduce in relation to the representations made by Ms Cumberland. First, neither document relied upon by the defence in the s 67 notice is a verbatim account. The NCA notes that ‘NCA investigators were introduced to Ms Cumberland and took her to a local coffee shop and spoke to her at length’. The notes then record what she appears to have said under a heading ‘in brief she stated’. Likewise, the affidavit of Mr O’Donnell does not purport to be a verbatim account, but appears to be a summary. Indeed the only suggestion that Mr O’Donnell took notes appears in [9] where Mr O’Donnell states that he ‘noted’ at that time that Ms Cumberland stated that Mr Trenery ‘works for the Italian mob’. Whether or not the use of the word ‘noted’ is literal or not is far from clear, but there is otherwise no suggestion that Mr O’Donnell’s affidavit contains direct quotations from Ms Cumberland.
Furthermore, as pointed out above, there are serious inconsistencies between the two versions of events purportedly provided by Ms Cumberland only days apart. That creates considerable uncertainty as to the veracity of her evidence. Whist it is true that such inconsistency is not a basis for exclusion, those inconsistences, together with the matters referred to in the previous paragraph, are matters relevant to whether or not the evidence has any probative value.
Additionally there are real issues as to relevance as, on any view, the events of which Ms Cumberland talks took place prior to the murder of Mr Winchester. Furthermore, it appears to be clear that the real purpose of the defence seeking to adduce Ms Cumberland’s evidence is to attack the credit of Mr Trenery which, at least from a prima facie viewpoint, would make Ms Cumberland’s evidence inadmissible pursuant to s 102 of the Act. I should observe that in the course of submissions on behalf of the accused, Mr Stanton submitted that the evidence of Ms Cumberland would satisfy the ‘threshold for admissibility’ under the Act. I am not so confident that that is so, taking into account the matters that are the subject of s 103(1) and (2), and in particular s103(2)(b) of the Act.
First, taking into account the confusing inconsistencies in the representations attributed to Ms Cumberlands, I have real doubt as to whether they could substantially affect of the credibility of the evidence of Mr Trenery, even if cross-examination of him is permitted.
Furthermore, I have no confidence that in circumstances whereby nearly thirty years have elapsed, that the evidence of Ms Cumberland would tend to prove that Mr Trenery knowingly or recklessly made a false representation when under an obligation to tell the truth. Whether or not any part of Ms Cumberland’s representations may be capable of being used in cross‑examination (if such is permitted) of Mr Trenery pursuant to s 106 of the Act, will have to wait the event. In any event it is clear that the whole of the representations contained in the s 67 notice relating to Ms Cumberland could not become relevant for that purpose.
A further matter relating to the relevance and the probative value (or lack thereof) of the representation made by Ms Cumberland is the fact that after Ms Cumberland had the conversation with the NCA, officers of the AFP undertook an investigation in respect of the information provided by Ms Cumberland to the NCA. Ms Cumberland was spoken to by one of those police members on 9 September 1994 and stated ‘I don’t know anything. Anyone who told you I do is talking thin air. You’re wasting your time’. Ms Cumberland refused to provide the AFP with a statement. In my view these matters, which are not included in the s 67 notice relating to Ms Cumberland, add weight to a conclusion that the evidence of the representations referred to in the notice are irrelevant and lack probative value.
Had it been the case that the prosecution had sought to adduce the evidence of Ms Cumberland under s 65(2) of the Act, I would have no hesitation in concluding that the representations were not made in compliance with s 65(2)(b) or (c). However, it is the accused seeking to adduce the evidence under s 65(8) of the Act. Clearly s 65(8) presents a far lower threshold than does s 65(2)(b) and or (c) and arguably those parts of the NCA note (assuming that the document can be proved) that are first‑hand hearsay only, may be capable of being admitted. However in my view the material upon which the defence seeks to rely is so lacking in probative value, and at the same time is highly prejudicial in that the relevant material may be used impermissibly by the jury to speculate, irrationally, that it provides some support for the evidence of Witness B, so that even if it is partly admissible, it should be excluded from being admitted into evidence under s 135 of the Act. On any view the evidence of Ms Cumberland, as pointed out above, contains obvious inconsistencies and is confusing and has the capacity to be misleading. The low probative value of the evidence is substantially outweighed by that danger.
It is appropriate to note that subsequent to the hearing of oral argument in relation to the three witnesses presently under consideration, on 15 May 2018 the defence filed further submissions relating to evidence that has been disclosed, on 11 May 2018 by the prosecution, relating to the visitor guest book of the Italo-Australian Club. The book contained an entry dated 9 January 1989 by ‘A. Trenery’ of ‘44 Deackin [sic] Street, Bell Park’ and an entry in the name of ‘M. Trenery’ of ‘13 Valder Place, Farrer’. In addition there was a further entry on the same date by a ‘G. Rondi’ with an address of ’47 Deakin Street Beel [sic] Park VIC’. On 10 January 1989 there were two entries, one for a ‘C. Mouri’ and another for a ‘D. Mouri’ each providing an address of ‘49 Deakin Street, Bell Park, 3215’. The defence submitted that the entry in the name of ‘A. Trenery’ on 9 January 1989 ‘possibly refers to Alan Trenery or could refer to Albert Joseph Trenery of 13 Valder Place, Farrer’. It was submitted that the address given of ‘44 Deackin [sic] Street, Bell Park’ may have been a false address given that ‘Deackin’ is not spelt correctly and is proximate to another address recorded in the guest book relating to ‘Deakin Street, Bell Park’ in Victoria. On this basis the defence submitted that the evidence of Mr Trenery and Mrs Cumberland ‘should be assessed in the light of the guest book entries’.
In response to the above submissions of the defence the AFP investigated the matter. It ascertained that Albert Trenery who lived with his son at 13 Valder Place, Farrer in the ACT had attended at a meeting of the Ducati Motorcycle Club at Italo-Australian Club at about the time in question. He did so with his son Mark Trenery. He does not know Alan Trenery. Accordingly, there is no basis to consider that the entries in the guest book of the Italo-Austrlian Club bear any relevance to the evidence of Alan Trenery or Valerie Cumberland.
Accordingly I order that:
(a)The evidence of Witness B, subject to Alan Trenery being called as a witness, is admissible.
(b)The evidence of Valerie Cumberland, which the defence seeks to lead pursuant to the s 67 notice relating to her, is inadmissible.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Acting Justice Kellam. Associate: Date: 14 June 2018 |
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