R v Eastman (No 45)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 45)
Citation:	[2018] ACTSC 197
Hearing Date:	15 May 2018 with subsequent written submissions filed by the defence on 23 May 2018 and by the prosecution on 25 May 2018 and further oral submissions on 31 May 2018.
DecisionDate:	4 July 2018
ReasonsDate:	9 July 2018
Before:	Kellam AJ
Decision:	See [104]–[108]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence of previous representations in s 67 notices filed by the prosecution – consideration of s 43 of the Evidence Act 2011 (ACT) where no witness is to give evidence – if evidence of a prior representation is admitted then evidence of a prior inconsistent representation can be admitted pursuant to s 108A of the Evidence Act 2011 (ACT) as credibility evidence provided it substantially affects the assessment of the person’s credibility – consideration of the danger of the evidence being misleading or confusing and whether it should be excluded pursuant to s 135(b) of the Evidence Act 2011 (ACT) – s 60 of the Evidence Act 2011 (ACT) applies where evidence is relevant for both a hearsay and a non-hearsay purpose - s 137 of the Evidence Act 2011 (ACT) does not require admissible evidence to be excluded if the probative value of the admissible evidence is not outweighed by the risk of unfair prejudice to the defendant – consideration of the court’s residual discretion to exclude evidence that is unfair to the defendant – opportunity to cross‑examine witness relevant to consideration of fairness to defendant
Legislation Cited:	Evidence Act 2011 (ACT) ss 43, 59, 60, 62, 65, 108A, 135 and 137
Cases Cited:	Eastman v The Queen (1997) 76 FCR 9 Lee v The Queen [1998] HCA 60; 195 CLR 594 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Eastman (No 27) [2018] ACTSC 1 R v Taufahema [2007] HCA 11; 228 CLR 232 Trustees of the Property of Zoltan Sandor, A Bankrupt v Ramirez [1999] NSWCA 261
Texts Cited:	Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters, 12^th ed, 2016)
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) ACT Legal Aid Office (Accused)
File Number:	SCC 111 of 1992

KELLAM AJ:

The prosecution has previously filed notices pursuant to s 67 of the Evidence Act 2011 (ACT) (the ‘Act’) relating to previous representations made by Lodewyk (aka ‘Louis’) Klarenbeek and his wife, Johanna (aka ‘Joanna’) Klarenbeek. In R v Eastman(No 27) [2018] ACTSC 1 (‘R v Eastman (No 27)’), I made orders relating to the admissibility of previous representations of Mr Klarenbeek. No orders have yet been made as to the admissibility of previous representations made by Mrs Klarenbeek. The prosecution has now filed a further s 67 notice dated 24 April 2018 relating to additional representations made by Mr Klarenbeek to his wife. In addition the prosecution has filed a further s 67 notice dated 24 April 2018 relating to representations made by Mrs Klarenbeek.

Background to the current application

Before turning to consider the submissions which are presently before me, it is necessary to consider the course of the argument. First, as is clear from the written submissions filed on 4 March 2016 (see [39]) the prosecution, at that time, accepted that the exceptions to the hearsay rule under s 65 only applied to first‑hand hearsay. It at that time accepted that evidence concerning representation (c) in the s 67 notice relating to Mrs Klarenbeek could not be adduced under s 65(3)(c) of the Act, although it did state that:

…. evidence concerning representation (c), or other evidence that falls in the category of second‑hand hearsay which would not be admissible under s 65, could be lead for a non‑hearsay purpose and therefore nevertheless be admitted on some other basis.

By further written submissions filed on 15 May 2017 (at 21) the prosecution confirmed its position and stated that ‘it accepts that it cannot lead second hand hearsay under s 65’ of the Act.

However, by written submissions dated 24 April 2018 the prosecution made application to lead previous representations of Johanna Klarenbeek. By these submissions, and contrary to the previous position adopted by the prosecution and referred to above, the prosecution submitted that representations (a), (b) and (c) in the s 67 notice relating to Mrs Klarenbeek come within the exception to the hearsay rule provided by s 65(2)(b) and or s 65(2)(c) of the Act. The prosecution conceded that it had previously agreed that the exceptions to the hearsay rule under s 65 only apply to first‑hand hearsay. However, it stated that ‘the Crown has reconsidered its position and submits that representation (c) is admissible under s 65(3) of the Act’.

In response to the prosecution’s written submissions dated 24 April 2018, and in written submissions filed and dated 4 May 2018, the defence submitted that all of the representations made by Mr Klarenbeek to Mrs Klarenbeek upon which the prosecution relies are inadmissible as second‑hand hearsay and do not fall within any of the exceptions to the rule against hearsay. Furthermore, the defence argued that the prosecution had not demonstrated that s 65(3) of the Act had been satisfied. It was submitted that the accused did not have a reasonable opportunity to cross‑examine Mrs Klarenbeek at the time that she gave evidence at the coronial inquest in relation to the representations upon which the prosecution now seeks to rely. In addition it was argued that in the event that the evidence in issue was held to be admissible, then it should nevertheless be excluded pursuant to s 135 or s137 of the Act or as a result of the exercise of the Court’s residual discretion.

In response to the defence submissions dated 4 May 2018, the prosecution filed further written submissions on 14 May 2018. These written submissions dealt with three issues. The first being a response to the submissions advanced on behalf of the accused that he had not had a reasonable opportunity to cross-examine Mrs Klarenbeek at the coronial inquest into the death of Mr Winchester (the ‘inquest’ or ‘coronial inquest’). The second being in response to the defence argument that the prosecution was seeking to cure an evidential deficiency at the first trial. The third relating to the appropriateness of Sergeant Nyveld and Constable Kooyman acting as interpreters at the inquest.

The matter came before me for argument on 15 May 2018. After senior counsel for the prosecution had completed his oral submissions, senior counsel for the accused stated that ‘the defence laboured under a misapprehension as to how the prosecution sought to rely upon the representations made by Mr Klarenbeek to Mrs Klarenbeek’. He submitted that the prosecution’s previous written submissions had dealt substantially with the issue of second‑hand hearsay, whereas the oral submissions presented ‘pretty much a different argument’. That complaint was not without substance. After discussions between counsel, agreement was reached that Mr Georgiou would be given time to further consider the matter and that the defence would provide brief written submissions to the prosecution and the Court and that the prosecution would then provide a brief written response. The parties agreed that there would be no further oral argument. In the circumstances I agreed to that course being followed. The defence filed further written submissions on 22 May 2018. The prosecution provided a written response to the Court late on Friday 25 May 2018. However, both parties nonetheless sought to advance further oral submissions which I heard on 31 May 2018, the second‑last sitting day before the date fixed for the empanelment of the jury.

The evidence in dispute

(a) Representations of Mr Klarenbeek

Before discussing the submissions that are now before me, it is appropriate to first summarise the evidence which is in dispute. The substance of the prosecution’s further s 67 notice relating to Mr Klarenbeek concerns additional previous representations made by Mr Klarenbeek to his wife, Mrs Klarenbeek, about:

(a)Test‑firing the Ruger 10/22 rifle and finding that it did not shoot straight. It is contended that the evidence is that this representation was made by Mr Klarenbeek to his wife on an unknown date shortly after Mr Klarenbeek test fired the Ruger at a quarry. (‘representation 3(a)’).
(b)Selling the Ruger to a man who paid in cash and who had attended his house on 31 December 1988 and 1 January 1989, both times without a car. This representation is said to have been made by Mr Klarenbeek to his wife in conversations between them which took place on the weekend of 31 December 1988 and 1 January 1989 at an unknown time at the Klarenbeeks’ house. (‘representation 3(b)’).
(c)Identifying the purchaser of the Ruger rifle. This representation is said to have been made on 28 January 1989 at the Klarenbeeks’ house, at an unknown time after police had been to the house in the course of investigating the murder of Mr Winchester and showed Mr Klarenbeek a photo of the accused. (‘representation 3(c)’).

The prosecution seeks to lead evidence of these previous representations by tendering evidence given by Mrs Klarenbeek at the inquest, and copies of statements and records of conversation adopted by her when giving that evidence.

The defence opposes the admission of each of the above representations into evidence.

(b) Representations of Mrs Klarenbeek

The substance of the evidence that the prosecution seeks to present in relation to previous representations made by Mrs Klarenbeek, as set out in the s 67 notice relating to Mrs Klarenbeek, are:

(a)About her husband, Louis Klarenbeek, selling firearms from their home (‘representation 6(a)’);
(b)About a particular man who came to the house, without a car in sight, on Saturday 31 December 1988 and Sunday 1 January 1989 to buy a firearm (‘representation 6(b)’);
(c)About Mr Klarenbeek’s disclosure to her that he recognised a photograph of the man who purchased the firearm in a police photoboard (‘representation 6(c)’);
(d)That she observed the purchaser of the firearm leave the house on 1 January 1989 wearing a darkish brown jacket and carrying the firearm with the strap loosely over one shoulder (‘representation 6(d)’).

The defence takes no issue as to the admission into evidence of representations 6(a), (b) and (d) above, as the defence concedes that these representations appear to be based upon Mrs Klarenbeek’s own observations and about which she gave evidence at the coronial inquest. However, objection is taken to the admission into evidence of the representation made by Mrs Klarenbeek that her husband disclosed to her that he had recognised the man who purchased the firearm in a police photoboard.

The representations that are the subject of dispute between the parties are said to have been made by Mrs Klarenbeek:

(e)In a recorded conversation with Detective Constable Andrew Thorp on 10 April 1990;
(f)At the inquest into the death of Mr Winchester on 23 November 1990;
(g)In a conversation with Sergeant Johannes Nyveld on 23 November 1990;
(h)In a recorded conversation with Detective Sergeant Thomas McQuillen on 5 December 1992;
(i)In the statement of Sergeant Nyveld endorsed by Mrs Klarenbeek on 5 December 1992 as being true and correct;
(j)At the inquest on 10 December 1992.

The representation made in a recorded conversation with Detective Constable Andrew Thorp on 10 April 1990

The representations to Detective Constable Thorp were made in the late afternoon of 10 April 1990 at Mrs Klarenbeek’s house at 34 Henderson Street, Queanbeyan. These representations are contained in a typed transcript of a tape‑recorded interview between Mrs Klarenbeek and Detective Constable Thorp. The interview was conducted in the course of police investigations into the death of Mr Winchester. Mrs Klarenbeek’s husband, Mr Klarenbeek, had died from the complications of cancer approximately four weeks prior to this interview taking place.

In the course of the discussion with Detective Constable Thorp, Mrs Klarenbeek said that she did not see the man who bought the Ruger firearm from Mr Klarenbeek, as her husband conducted his business outside. She said that her husband told her that the man was ‘nice dressing, nice shaving, he looks you know, a gentleman, was what he told me’. Her husband told her that he had shown the man the rifle and the man had told her husband that he would come back the next day at three o’clock in the afternoon. Her husband said he did not see a car when the man walked outside. Her husband told her that the man agreed to pay cash for the rifle. When the man came back on the Sunday she did not look out the window to see if there was a car, but her husband told her that the man had walked away and was not in a car.

The representations made at the inquest into the death of Mr Winchester on 23 November 1990

Mrs Klarenbeek gave evidence before the Coroner on 23 November 1990. A sergeant of police, John Nyveld, who spoke Dutch was sworn in as an interpreter. It is apparent from the transcript that Mrs Klarenbeek spoke some English, but it is not clear from reading the transcript which answers she gave in Dutch and which answers she gave in English. However, in the course of giving her evidence Mrs Klarenbeek confirmed that the record of the conversation she had had with Detective Constable Thorp on 10 April 1990 was correct.

The representations made in a conversation with Sergeant Nyveld on 23 November 1990

On 23 November 1990, the same day that Mrs Klarenbeek gave evidence before the Coroner and in the course of the lunchtime adjournment, Mrs Klarenbeek had a conversation, in the Dutch language, with Sergeant Nyveld. His note of the conversation, which appears to have been prepared three days later on 26 November 1990, records that Mrs Klarenbeek had told him that her husband had told her that he had seen a photograph of the man who bought the gun. The notes record that Mrs Klarenbeek asked Sergeant Nyveld not to ‘tell anyone but Louis said that it was him’. When asked why Mr Klarenbeek did not tell the police that, Mrs Klarenbeek said ‘he said he didn’t want to betray him’. Mrs Klarenbeek told Sergeant Nyveld that her husband had told her that after the police had left their house.

The representations made in a recorded conversation with Detective Sergeant Thomas McQuillen on 5 December 1992

Sergeant Thomas McQuillen interviewed Mrs Klarenbeek on 5 December 1992. He reminded Mrs Klarenbeek of her having given evidence before the Coroner on 23 November 1990. She said that she remembered that after she had given some of her evidence she had a cup of coffee with Sergeant Nyveld and had a conversation with him in the Dutch language. Mrs Klarenbeek was shown the notes in the Dutch language of that conversation which Sergeant Nyveld had made following the discussion in the coffee shop on 23 November 1990. Mrs Klarenbeek read the notes out in English and signed each page. She agreed that the content of the notes as to what she had said to Sergeant Nyveld was correct. When asked by Sergeant McQuillen why her husband had said what he had to police, she said her husband was scared. She said her husband had identified ‘the murderer' on the photoboard. The representations contained in the statement of Sergeant Nyveld were endorsed as being true and correct by Mrs Klarenbeek with her signature on 5 December 1992. The conversation between Mrs Klarenbeek and Sergeant McQuillen was videotaped.

The representations contained in the statement of Sergeant Nyveld endorsed as being true and correct by Mrs Klarenbeek on 5 December 1992

On 26 November 1990 Sergeant Nyveld made a statement setting out the conversation that he had had with Mrs Klarenbeek at the coffee shop during the lunch adjournment at the coronial inquest on 23 November 1990. That statement bears the signature of Mrs Klarenbeek with which she had endorsed the statement of Sergeant Nyveld as being true and correct on 5 December 1992 in the presence of Sergeant McQuillen.

The representations of Mrs Klarenbeek made at the further hearing of the coronial inquest on 10 December 1992

Mrs Klarenbeek gave evidence before the Coroner for the second time on 10 December 1992. On this occasion, as on the first occasion, a police officer, this time a Constable John Kooyman, was sworn in as a Dutch interpreter. Mrs Klarenbeek was shown the videotape of her discussion with Mr McQuillen on 5 December 1992. Mrs Klarenbeek gave evidence that Mr Nyveld’s 26 November 1990 statement, of the conversation that she had had with Mr Nyveld on 23 November 1990, was true and correct.

In the course of her examination Mrs Klarenbeek agreed that her husband had positively identified, from a photograph on a photoboard shown to him by police, the person who had bought the gun.

The additional representations of Mr Klarenbeek upon which the prosecution seeks to rely

As stated above the prosecution also seeks to rely upon additional representations made by Louis Klarenbeek to his wife, being those referred to as representations 3(a), 3(b) and 3(c).

The prosecution submissions

First, as is clear from the above, it is to be observed that the argument now advanced by the prosecution is a substantial change from the previous position (indeed positions) of the prosecution.

Notwithstanding its earlier argument before me that that the representations made by Mr Klarenbeek to Mrs Klarenbeek fall within the exceptions to the hearsay rule provided by s 65(2)(b) and or s 65(2)(c) of the Act, the prosecution position is now made clear by the further written submissions of the prosecution dated 25 May 2018 where the following is stated:

The Crown analysed the relevant provisions, ss 62, 65 and 108A, orally on 15 May 2018. It agreed with (the defence) submissions that second hand hearsay could not be adduced pursuant to s 65 because of s 62. The Crown’s original position on s 65(3) was wrong. (The defence) accepts that a prior inconsistent statement is not hearsay and cannot therefore be second hand hearsay. That is trite. For the purpose of this argument, as s 65 is no longer relied on, s 62 is irrelevant.

Accordingly, the prosecution now accepts the defence submissions covering the inadmissibility of second‑hand hearsay, but argues that each of the disputed representations is admissible for non-hearsay purposes. It submits that ‘the issue now is whether or not the statements are prior inconsistent statements’.

The prosecution submits that s 59 of the Act makes it clear that for a previous representation to be classified as hearsay it must be able to prove the existence of a fact. In this regard the prosecution relies upon the statement of the author of Odgers Uniform Evidence Law (Thompson Reuters, 12^th ed, 2016) (‘Odgers’) (at 364) where it is stated that ‘if evidence of a previous representation made by a person is not adduced to prove the existence of a fact asserted by the representation, it is not classified as hearsay’. Thus the prosecution submits that if there is a non‑hearsay purpose for the admission of representations made by Mr Klarenbeek to Mrs Klarenbeek, then it is not hearsay. That submission is correct. The rule is purposive in that its application depends upon the use or the purpose that is made of the evidence (see Lee v The Queen [1998] HCA 60; 195 CLR 594, and Papakosmas v The Queen [1999] HCA 37; 196 CLR 297).

The prosecution argues that its approach to the admissibility of the further Klarenbeek representations is no different from the legal argument relied upon by defence in relation to the s 67 notice filed by it relating to the proposed evidence of Mario Cannistra. The defence annexed a transcript of evidence given by Mr Cannistra at the coronial inquest on 8, 9 and 10 October 1990, which transcript clearly contains second‑hand hearsay. Examples can be found in representations (3), (5) and (6) of the s 67 notice where the defence seeks to rely upon Mr Cannistra’s evidence of things said to him by Mr Verduci. Other examples can be found in representations (7) and (12) whereby the defence seeks to have admitted into evidence conversations had between Mr Cannistra and an AFP officer, Mr Franklin. By written submissions filed on 26 March 2018 the prosecution argued that such second‑hand hearsay is inadmissible. The response of the defence to that submission is that these representations are not second‑hand hearsay because they are not being used to prove any underlying fact, but are intended to prove other issues. An example is representation (26) referred to in the s 67 notice relating to Mr Cannistra which states ‘Verduci had wanted Mr Cannistra to meet Winchester because it would be good to meet him. Winchester was held out to be a protector, although put in a different way’. On the face of it that representation is clearly second‑hand hearsay. However, the defence argue that the representation is not second‑hand hearsay as it is not being used to prove that Mr Winchester was a protector or that it would have been good to meet Mr Winchester, but rather to show that Mr Cannistra was likely to have held the belief that Mr Winchester was a protector of the group’s cannabis activities.

The prosecution concedes that the evidence it relies on, that was given by Mrs Klarenbeek at the coronial inquest on 29 November 1990 and 10 December 1992, is second‑hand hearsay. However, the prosecution submits that insofar as Mrs Klarenbeek gave evidence that her husband told her that in fact he had recognised on the police photoboard shown to him a photograph of the man who purchased the gun, that evidence is admissible for the non‑hearsay purposes of being evidence of a prior inconsistent statement on the part of Mr Klarenbeek. Furthermore, it is evidence that reflects upon the credibility of Mr Klarenbeek and thus is admissible pursuant to s 108A of the Act. In addition, and in the course of oral argument on 15 May 2018, Mr Thangaraj referred to Odgers (at 365) whereby the author set out a series of examples of cases where previous representations had not been caught by the hearsay rule. The examples upon which Mr Thangaraj placed reliance are as follows:

(k)evidence of threats made to a person adduced to prove that he or she was acting under duress;
(l)evidence of oral representations to explain why certain conduct occurred thereafter;
(m)evidence of the contents of a representation adduced for the purpose of drawing rational inferences, such as to the speaker’s intention, emotion, or knowledge of or belief in the facts asserted;
(n)evidence of a conversation to infer the matters being discussed;
(o)evidence of a previous representation by a witness adduced to prove consistency or inconsistency with the witness’s in‑court testimony (and thereby bearing on the credibility of the witness);
(p)evidence of a representation by a person used to infer the identity of the person.

The prosecution relies upon the evidence that soon after the buyer had bought the Ruger rifle the police attended and showed Mr Klarenbeek a photoboard. He told police that there was no photograph of the buyer of the rifle on the photoboard. It is contended that the evidence reveals that soon after the police left, Mr Klarenbeek told his wife that in fact there was a photograph of the buyer on the photoboard he had been shown. Later, Mr Klarenbeek gave evidence, from his hospital bed, before the Coroner when he again denied that there was a photograph of the buyer on the photoboard he was shown. The prosecution therefore submits that what Mr Klarenbeek told his wife is admissible as a prior inconsistent statement and is thus being admitted for a non‑hearsay purpose. In addition, it is submitted that the evidence is admissible as an explanation of the conduct of Mr Klarenbeek in not identifying, and providing to police a mis-description of, the buyer of the Ruger. The prosecution argues that the evidence of Mrs Klarenbeek is to the effect that her husband was scared, because he knew the photograph of the buyer was on the photoboard and believed that the buyer may have killed Mr Winchester, which explains his later conduct.

As stated above, the prosecution argues that s 108A of the Act is applicable. Section 108A states as follows:

108AAdmissibility of evidence of credibility of person who has made a previous representation
(1)If—
(a)   evidence of a previous representation has been admitted in a proceeding; and
(b)   the person who made the representation has not been called, and will not be called, to give evidence in the proceeding;
credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility.
(2)Without limiting the matters to which the court may have regard for subsection (1), it must have regard to—
(a)   whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and
(b)   the period that elapsed between the doing of the acts or the happening of the events to which the representation related and the making of the representation.

The prosecution relies upon the fact that the evidence of the previous representation by Mr Klarenbeek, to the effect that he did not identify any person on the police photoboard as being the person who purchased the Ruger rifle, will as a result of the rulings made by me in R v Eastman (No 27) be presented as evidence in the prosecution case. It is appropriate to observe here, as I did at [66] of R v Eastman (No 27), that whilst s 108A of the Act only comes into consideration once evidence of a previous representation has been admitted into a proceeding, it appears to me to be sensible that I give consideration to the matter at this time, rather than interrupt the jury trial for the purposes of determining this issue which I consider, and both parties agree, is a question of some conceptual difficulty. The prosecution argues that once the evidence of that previous representation by Mr Klarenbeek is admitted, it is apparent that Mrs Klarenbeek’s evidence as to what her husband told her could substantially affect the assessment of the credibility of Mr Klarenbeek in respect of that previous representation. It is submitted on behalf of the prosecution that this evidence most certainly tends to prove that Mr Klarenbeek knowingly made a false representation when he was under an obligation to tell the truth to the Coroner and that the period of time between the sale of the rifle and the making of the representation was not substantial.

In response to the oral submissions made by senior counsel for the prosecution on 15 May 2018 the defence filed further written submissions on 22 May 2018. The written submissions note that the prosecution had ‘accepted the correctness of defence submissions concerning the inadmissibility of second‑hand hearsay’, as set out in the defence written submissions dated and filed 4 May 2018. Although the defence concedes that evidence that is relevant, and that is led for a non‑hearsay purpose, may be admissible, the defence maintains that nevertheless the disputed representations should be excluded.

First, in relation to representations 3(c) and 6(c) the defence submits that it is incorrect for the prosecution to argue that the evidence of Mr Klarenbeek identifying the purchaser of the Ruger rifle is inconsistent with what he told police and the Coroner. It is argued on behalf of the accused that once the evidence is ‘properly considered’ that is clear. It is therefore necessary to give some detailed consideration as to what the evidence is.

(a) The evidence relating to the representation said to have been made by Mr Klarenbeek referred to in representations 3(c) and 6(c)

On 28 January 1989, Detective Pattenden together with Detective Davis attended at Mr Klarenbeek’s home. There can be no doubt that they attended in relation to the sale by him of a Ruger 10/22 rifle. There they spoke to Mr Klarenbeek and showed him a photoboard. The photoboard contained twelve colour photographs, one of which was a photograph of the accused. The photographs were contained in a manila folder which opened in the middle. Each side of the folder had three photographs on the top and three on the bottom. The photographs were numbered one to six across the two sides of the folder, and seven to twelve across the two sides at the bottom of the folder. The photograph of the accused was number seven and situated at the bottom left‑hand side of the left‑hand part of the folder. The photographs show the men from approximately their knees to above their head in each case. Detective Pattenden’s statement records that Mr Klarenbeek stated that he was unable to recognise any person depicted in the photographs, as the male person who had purchased the .22 calibre Ruger rifle from him. Detective Davis wrote on his occurrence sheet ‘Klarenbeek was shown photoboard but did not identify anyone’.

Neither Detective Pattenden’s nor Detective Davis’ statement records the precise words used by Mr Klarenbeek, nor does either statement say that Mrs Klarenbeek was present at the time. The prosecution argues that it can be inferred that Mrs Klarenbeek did not see the photoboard as, if she had been present when it was shown to Mr Klarenbeek, the police would almost certainly have recorded that fact, and in addition the police would have shown the photoboard to her in the hope that she would make an identification, when her husband had not. On the other hand, as will become apparent, Mrs Klarenbeek has given evidence that she was present when her husband was shown photos of twelve men on a board.

The next step is that on 9 August 1989, Detective Constable Cotterill and Detective Davis attended upon Mr Klarenbeek and recorded a conversation with him. The interview commenced with Mr Klarenbeek agreeing that he understood that Detective Cotterill was going to ask him questions about ‘a 10/22 Ruger rifle’ that Mr Klarenbeek had purchased from King’s gun shop in Fyshwick on 12 October 1988. In the course of that conversation, Mr Klarenbeek told police that he sold the rifle about four weeks before Mr Winchester was killed. He said ‘a couple or three’ came to inspect the rifle. He said he thought the man came on a Saturday:

…. and looked at it, but he wanted it without the scope and I didn’t want to sell it without the scope. He said he already had a scope and some other guns. He came again on the Sunday and we agreed on a price for the rifle without the scope.

Mr Klarenbeek provided a description of the man who he said had produced a New South Wales (‘NSW’) shooter’s licence. When asked if he could again recognise the man who purchased the Ruger, he said ‘80%, yes’.

Just under three weeks later, on 31 August 1989, Mr Klarenbeek gave evidence at the coronial inquest sitting at the Royal Canberra Hospital. The transcript (at T573) makes it clear that Mrs Klarenbeek was present at the time. Counsel assisting the Coroner, Mr Dee, read the transcript of the interview had between Mr Klarenbeek and Detective Constable Cotterill on 9 August 1989. Mr Dee then asked Mr Klarenbeek the following questions (at T576):

Mr Klarenbeek, there is one other matter, the police showed you folders of photographs of men, did they not?---Once, yes.
On one occasion or more than one?---Once.
Just on one occasion. And were you able to pick out, from those photographs, the man to whom you sold the Ruger?---Yes. Not 100 per cent.
I am sorry?---Not 100 per cent.
Not 100 per cent?---He is one bloke, the second one. He was, what you can say, build like I think, but was not the man. His face was different.

At that point the Coroner interceded and asked:

So what you are saying Mr Klarenbeek is he was the closest, but you could not identify him as the man?

To which Mr Klarenbeek answered ‘No’. The Coroner then stated that he saw no need to show the photographs to Mr Klarenbeek.

On the basis of the above passage from the inquest, it is argued on behalf of the accused that had the photoboard been shown to Mr Klarenbeek, the court would be in a position to know to which photograph Mr Klarenbeek was referring, and whether it was the same photoboard as that shown to him by Detective Pattenden on 28 January 1989. It is argued that in such circumstances it is open to conclude that because Mr Pattenden made no note of what Mr Klarenbeek said at the time of him being shown the photoboard, that what Mr Klarenbeek said to him was consistent with his evidence at the coronial inquest. That is, that there was no positive identification of the man, but there was a man on the photoboard who was ‘not 100%’ but who was the closest in appearance to the man to whom he had sold the rifle. Thus it is argued that what was said by Mr Klarenbeek is not inconsistent with what he told Mrs Klarenbeek.

The reliance by the defence upon what Mr Klarenbeek said in response to Mr Dee’s question, ignores other evidence given by Mr Klarenbeek at the coronial inquest on the same day, which evidence was not referred to in submissions put before me on behalf of the accused. First, in response to a question from Mr Nash, Mr Klarenbeek said he had only seen one photoboard on only one occasion. Mr Nash asked (at T581):

And what do you say about the photo of the man that you have indicated?---He ask me if something close to it. There was nothing close to it.

Of more significance is that Mr Donald, then representing the accused, asked Mr Klarenbeek the following question (at T581):

Can I just confirm, Mr Klarenbeek, that none of the people in the photographs – definitely none of the people in the photographs was the man who you sold the gun to?---No.

The first conclusion that can be reached on the evidence I have referred to above is that there can be little doubt that Mr Klarenbeek was referring to the photographs that he had been shown by Detective Pattenden on 28 January 1989 (the ‘Pattenden photoboard’) when he agreed with the leading question of the accused’s counsel that ‘definitely none of the people in the photograph was the man’ to whom he had sold the Ruger. The evidence is clear that the only photographs that he had been shown at the time that he gave that evidence were the twelve photographs appearing upon the Pattenden photoboard.

On 25 September 1989, Mr Cotterill attended upon Mr Klarenbeek at his residence and showed him a video containing images of the accused. Mr Klarenbeek said, having seen the videos, that the only time that he had seen the man in the video was on the television, and that the man depicted in the video‑tape was not the man who had purchased a Ruger rifle from him. The defence submissions make no reference to this event.

On 27 September 1989, Detective Cotterill attended at the Klarenbeeks’ premises and showed Mr Klarenbeek six colour polaroid photographs of six men. The photographs showed the men from their chests to above their heads. Those photographs included a photograph of Raymond Webb, who had told police that he had purchased a TOF brand .22 rifle from Mr Klarenbeek on 31 December 1988, and had collected it from Mr Klarenbeek on 5 January 1989. Another photograph was that of Robert McCorry, who had told police that he had purchase a KRICO brand .22 rifle from Mr Klarenbeek on 15 February 1989. In his statement of 19 April 1995, Mr Cotterill states that ‘Mr Klarenbeek was sitting in the lounge room and I had placed each photograph .singularly in front of him and then left each photograph until all 6 photographs were placed before him’. The six photographs did not include a photograph of the accused. Mr Cotterill recorded in his statement that he asked Mr Klarenbeek whether or not he recognised any of the men in the photographs, to which Mr Klarenbeek replied that he did not. Mr Cotterill then asked Mr Klarenbeek if he had ever sold a firearm to any person depicted in the photographs, to which he replied that he had not.

On 10 April 1990, Mrs Klarenbeek was interviewed by Detective Constable Thorp at her home in Queanbeyan. Detective Constable Thorp asked her about the discussion had between police and her husband as follows:

Q. Right. And er we've spoken, spoken to Lodewyk several months ago and he described a firearm that he did sell from this [sic] premises and he was unsure as to the date but er, it was the type that we're interested in locating, Do you recall the Police, were you present when Police spoke to Lodewyk about that?
A. Yeah.

The evidence is that there were two discussions had with Mr Klarenbeek of the nature referred to in the question asked of Mrs Klarenbeek by Detective Constable Thorp, the first being on 28 January 1989 when Mr Pattenden showed Mr Klarenbeek the photoboard with twelve colour photographs, and the second, on 9 August 1989 when Detective Cotterill interviewed Mr Klarenbeek. It is not clear to which conversation Detective Constable Thorp was referring when he questioned Mrs Klarenbeek as set out above. However, on each occasion, the discussion with Mr Klarenbeek was specifically about a Ruger 10/22 rifle. Both discussions preceded the interview later conducted by Detective Cotterill with Mr Klarenbeek on 27 September 1989 when Mr Klarenbeek was shown the six polaroid photographs of men other than the accused. There is no suggestion in Detective Cotterill’s statement of 27 September 1989 that there was any discussion about a Ruger 10/22 rifle at that time. The purpose of Detective Cotterill’s visit on 27 September 1989 was for an entirely different reason than to discuss the sale of the Ruger 10/22 rifle.

The defence, however, places considerable reliance upon the photographs shown by Detective Cotterill to Mr Klarenbeek on 27 September 1989 (the ‘Cotterill photographs’) and the fact that they were ‘head shots’ only. It is submitted that it is speculation ‘to assume that when Mr Klarenbeek spoke to his wife that he was referring to the Pattenden photoboard’. It is submitted that as it is not clear when Mrs Klarenbeek had the discussion with her husband, it is open to conclude that it occurred after her husband was shown the Cotterill photographs. As stated, the first time that Mrs Klarenbeek informed anybody that her husband had not been honest with police when he looked at the photoboard, was when she spoke to Sergeant Nyveld during the lunchtime adjournment at the Coroner’s Court on 23 November 1990 (by which date Mr Klarenbeek was deceased).

The notes that Sergeant Nyveld made on 26 November 1990 state that Mrs Klarenbeek told him in the course of a conversation which was conducted in the Dutch language during the lunchtime break in the coronial inquest on 23 November 1990, that ‘I know that Louis saw the man’s photo’. After Sergeant Nyveld asked which photo it was, she indicated on a blank table that ‘it was on this side at the bottom’. She said ‘Yes, that was him’ and ‘Don’t you tell anyone but Louis said that it was him’. When asked why Louis did not tell the police that, Mrs Klarenbeek said that ‘he said he didn’t want to betray him’. She said that Louis told her those things when the police had gone. The notes do not record whether Mrs Klarenbeek saw the photographs shown to her husband nor do the notes make it clear when her husband told her about the above matters, other than that it was ‘when the police had gone’.

Mrs Klarenbeek was subsequently interviewed by Sergeant McQuillen, in the presence of Detective Lawson, on 5 December 1992. Why there was such an extraordinarily long gap between Mrs Klarenbeek speaking to Sergeant Nyveld, and her being interviewed about the conversation, is not explained by the evidence. The interview was recorded on videotape. She was asked about the conversation she had with Sergeant Nyveld on 23 November 1990. Sergeant McQuillen said:

Q28 But you also had a conversation in Dutch with John, it was Sergeant John NYVELD,
A     Yeah
Q29 And ah and you said that you knew that Louis saw the man's photo, remember that
A     Yes.
Q30 Now do you remember that conversation?
A     Yeah.

Sergeant McQuillen then showed Mrs Klarenbeek the statement that had been provided by Sergeant Nyveld which was written in both Dutch and English. Mrs Klarenbeek agreed that the note made by Sergeant Nyveld accurately set out the conversation that she had had with Sergeant Nyveld. She then read out the statement in English as follows:

I know that Louie saw the man's photo. Of the man that buy the gun, yes. Yes Louie say that is, that was the man, which photo was it, Louie was here ….. was here and …. on that table there was ...... it was on the other side on the bottom ...... left, I don't know ........... are you sure, yes that was him, yeah that was him........ the he sees it, don't you tell any, that Louie say that was him ....... tell …. the Police that, he said ....... to be trying ........ Lou was that ….. say that it was, that was the man ….. that I can say. When did Louis tell you that, when the Police had gone, can't say which photo Louis say that is man, yes that was the one in .............. on the table lower left ..... Do you know that man ............. No ..... I did see him I only just when I walk across the letter box that I see him.

Having read out the statement as set out above, Sergeant McQuillen asked Mrs Klarenbeek if she would sign each page of the statement as being true and correct. Her answer was ‘That is all correct’. She was then asked to sign and date the bottom of each page, which she did. Subsequently in the course of the same conversation with Sergeant McQuillen, Mrs Klarenbeek was asked about the statement that she had made to Sergeant Nyveld, that Louie ‘did not want to betray the man’ as follows:

Q63I'm just going to take you to a part of it Mrs KLARENBEEK where um, where Louis said 'he said he did not want to betray him'
AWhat is that …. how you say ….. he was afraid
Q64What, what did Lou
ACause Lou was scared
Q65Lou was
ALou was very sick you know that and he said mum I can't ....... I don't like to say that's the man that .... why say it to the man
Q66So what
ALou was scared
Q67Lou was scared but
AI walk around, it …… you know that's the two it chairs like that
Q68Yes
AI can shoot, through the door and have him straight away, too, you know what I mean
Q69So your saying Lou was scared .of being shot by that man?
AOh yes, yeah

Subsequently Mr McQuillen asked Mrs Klarenbeek about a photoboard which had been previously shown to her by Commander Ninness and himself:

Q86I haven't got then [sic] here with me at the present time but we can get them. But you’ve already been shown the photoboard haven't you? You've already been shown that photo?
AI see it in the Police, they come in me home and they show Lou the ... the pictures ............
Q87But remember that, remember Commander NINNESS, Mr NINNESS and I came out to your home?
AMmm
Q88And we showed you a folder which had photos on it and you said what [sic] the man wasn't on that one?
AMmm
Q89Is that
AThat was not in it.
Q90He wasn't in it?
ANo. That was ...... see it, you know that, that's not him, that’s the wrong pictures

There is no statement before me from either Mr McQuillen or Mr Ninness as to the showing of the photoboard to which Mr McQuillen referred in the course of the above interview with Mrs Klarenbeek. However, the statement of Sergeant Nyveld dated 28 November 1990, annexed to the s 67 notice relating to Mrs Klarenbeek, states that on 20 November 1990 he attended with Mr McQuillen and Mr Ninness upon Mrs Klarenbeek at her home. The conversation had with Mrs Klarenbeek is not recorded in Sergeant Nyveld’s statement but it is stated that ‘She also referred to an occasion when police had come to her house and shown a photoboard to Louis. Arrangements were made that we return the following day to show her a photoboard’. Sergeant Nyveld’s statement records that he and Mr Ninness and Mr McQuillen did return the next day, but no mention is made of a photoboard having been shown to Mrs Klarenbeek.

On 10 December 1992, Mrs Klarenbeek gave evidence at the resumed coronial inquest. A Constable John Kooyman was sworn in as a Dutch interpreter (although it is clear from the transcript that Mrs Klarenbeek gave some answers in English). Mrs Klarenbeek was shown the video‑tape of the conversation that she had had with Sergeant McQuillen on 5 December 1992. Mrs Klarenbeek agreed that what she had told Sergeant Nyveld when she had spoken to him on 23 November 1990 was true. She said that Louie had told her those things after the police had left, after they had shown him some photographs. She said Louie was shown one lot of photographs on a board of twelve people ‘one time’ at her home address in Queanbeyan. She described the board as being a little bigger than an A4 sized page. She said that there were twelve photographs of twelve men from the ‘top of the shoulders’. She said there were six photographs along the top and another six along the bottom. She was then shown an exhibit (referred to in the transcript as Exhibit 402 L4) which would appear to be the photoboard shown by the police to Mr Klarenbeek on 28 January 1989. Mrs Klarenbeek stated that the photoboard was not the same one that she had been shown previously, and that she had never seen that photoboard, and that the photographs that had been shown to her husband were ‘head shots’.

Counsel assisting the Coroner then asked a series of questions as to where the photograph of the person, who had been identified by Mr Klarenbeek as the person who bought the gun, was situated on the photoboard. Mrs Klarenbeek said that it was ‘bottom row, third from the left’. That appears to be different from what she demonstrated to Sergeant Nyveld and, if she was correct in this evidence before the Coroner, it would suggest that she was not referring to the Pattenden photoboard. Mrs Klarenbeek was then cross‑examined by Mr Purnell, who was acting for Mrs Winchester and her family. In answer to a question as to what were the exact words used by her husband after he saw the photographs, Mrs Klarenbeek said in English ‘it looks like that man’. She said that her husband said ‘It looks like the murderer’. Mrs Klarenbeek confirmed that her husband had this conversation with her after he had seen the photographs that were shown to him ‘on the very first occasion the police came and showed him some photos’.

Summary of the defence response to the prosecution’s submissions

Accordingly it is appropriate at this point to summarise briefly the defence position in relation to the way that the prosecution now argues that the representations of Mrs Klarenbeek are admissible.

First it is argued that representations 3(c) and 6(c) cannot be admitted as a prior inconsistent statement for the purpose of discrediting Mr Klarenbeek’s representation that he did not identify the accused on the Pattenden photoboard. In this regard the defence relies upon the answers given by Mrs Klarenbeek when she said that the exact words used by her husband were ‘it could be him’, ‘it looks like the man’, ‘it looks like the murderer’, and ‘he never said the words ‘yeah, that’s the murderer’. It is argued that when regard is had to those words, and in circumstances where it is not possible to tell which photoboard Mr Klarenbeek was referring to when he made these comments to his wife, there is no inconsistency.
Secondly it is argued that because the accused did not have a reasonable opportunity to cross‑examine Mrs Klarenbeek when she gave evidence at the coronial inquest the admission of her representations into evidence would be unfair.
Thirdly it is argued that the reliance upon the representations made by Mr Klarenbeek to his wife is such a substantial difference from how the prosecution was run at the first trial, that they should not be admitted.
Fourthly it is submitted that representation 3(a), that the Ruger rifle did not shoot straight, is second‑hand hearsay and is inadmissible.
Fifthly it is submitted that the several representations in representation 3(b) are second‑hand hearsay and are inadmissible.
Finally, even if the representations are admissible, it is submitted that they are of low probative value and are so confusing that they should be excluded pursuant to s 135(b) of the Act, or in the alternative should be excluded under s 135 or s 137 of the Act, or in the exercise of the court’s residual power to exclude evidence which is unfair to the accused.

Can representation 3(c) and 6(c) be admitted into evidence as a prior inconsistent statement or under s 108A of the Act?

I turn now to the prosecution’s submission as to the admission of the evidence of Mrs Klarenbeek about things said to her by her husband (see [8(c)] and [11(c)] above) to the effect that he recognised in a police photoboard, the photograph of the man who purchased the firearm. The prosecution argues that as this evidence relates to a prior inconsistent statement, made by Mr Klarenbeek to his wife before Mr Klarenbeek gave evidence at the coronial inquest on 31 August 1989, it is admissible for a non‑hearsay purpose.

Furthermore, and as stated above, the prosecution puts the argument another way. It relies upon s 108A of the Act. It is submitted that as the evidence of Mr Klarenbeek’s non‑identification of the accused upon the Pattenden photoboard will be admitted into evidence (see R v Eastman (No 27)) and as Mr Klarenbeek cannot be called to give evidence, s 108A(1) is applicable. Thus the prosecution contends that what Mr Klarenbeek told his wife ‘could substantially affect the assessment of the credibility’ of Mr Klarenbeek.

The defence in its written submissions dated 22 May 2018 (see [5] – [26]) submits that the evidence about what was said to Mrs Klarenbeek by Mr Klarenbeek lacks clarity and cannot be admitted into evidence as a prior inconsistent statement or under s 108A of the Act. In summary the defence submits:

(q)The conversation between Mr Klarenbeek and Detective Pattenden is not recorded in any detail. Whether Mr Klarenbeek commented, as he did before the Coroner, that one of the men was close in appearance is not known;
(r)Mr Klarenbeek was not shown the photo board at the coronial inquest and therefore was not asked to point to the man closest in appearance;
(s)It is speculation to assume that, when he spoke to his wife, Mr Klarenbeek was referring to the photoboard shown to him by Detective Pattenden and even if he was, what he told the police and the Coroner is not inconsistent with what he told his wife;
(t)Mrs Klarenbeek was firm when she told the police, and the Coroner in the course of her evidence on 10 December 1992, that the photoboard shown to her was not the one her husband was shown. She gave a reason why that was so, the photos shown to her husband were ‘headshots’; and
(u)It is not clear when she had the discussion with her husband. It is open to infer that it could have occurred after her husband was shown the second group of photographs by Detective Cotterill. Those photos where headshots.

Thus the defence submits that it is unfair to the accused to allow the evidence to be admitted as a prior inconsistent statement for the purpose of discrediting Mr Klarenbeek’s previous representation. It is argued that apart from the problems with the evidence referred to above, there is the associated danger of not knowing precisely what Mr Klarenbeek told his wife. Mrs Klarenbeek was repeating to police and to the Coroner a conversation she had had with her husband some period of time after it had occurred. The conversation was not recorded. The circumstances in which that conversation occurred are not known including the date, the photographs to which Mr Klarenbeek was referring, nor what was said immediately before or after. It is submitted that given the problems with the evidence, and given also Mr Klarenbeek’s evidence before the Coroner that there was a person on the photoboard who was ‘close in appearance’, it is submitted that the evidence of what he told his wife could not substantially affect the assessment of his credibility.

As was submitted on behalf of the accused, there is no opportunity to test either Mr Klarenbeek’s account or that of his wife. The reliability of her recollection cannot be tested nor can the circumstances surrounding the purported representation. Accordingly, the defence submits that the characterisation of the representation as a prior inconsistent statement should be rejected. In the alternative it is submitted that the representation in question could not substantially affect the assessment of Mr Klarenbeek’s credibility.

Furthermore, and although it was not directly argued before me, I consider that it might be arguable that the second‑hand hearsay of a person who is now dead, referring to a representation of a person who is also dead, cannot be used in the way contemplated by the prosecution. Section 43 of the Act sets out a precise procedure for the admission into evidence of prior inconsistent statements ‘of witnesses’. In Trustees of the Property of Zoltan Sandor, A Bankrupt v Ramirez [1999] NSWCA 261 (20 August 1999), Sheller JA (with whom Meagher and Beazley JJA agreed) stated [at 61] that he did not consider that s 60 of the Act allowed a party to:

…. by-pass the requirements of s 43 where it wishes to rely upon a witness’s prior inconsistent statement. Section 60 is concerned not with admissibility, but with the way in which a statement which has been admitted for non-hearsay purposes, as, for example, a prior inconsistent statement admitted for the purpose of assessing a witness’s credibility, can be used.

It should be observed that if use was to be made of a prior inconsistent statement in the cross‑examination of a witness pursuant to s 43 of the Act, either ‘complete particulars of the statement’ or a document containing a record of the statement, must be given or shown to the witness. Of course, in the circumstances presently before me there will be no witness to confront in that way.

The evidence of Mrs Klarenbeek, as disclosed by the documents relied upon by the prosecution, is contradictory in places and arguably not such that one could say ‘full particulars’ of the alleged inconsistent statement made by Mr Klarenbeek can be established. In such circumstances, I have some doubt as to whether such evidence is admissible as a prior inconsistent statement. However, that issue does not require determination because, as stated above, the prosecution, in addition, relies upon s 108A of the Act in submitting that what Mr Klarenbeek told his wife ‘could substantially affect the credibility’ of Mr Klarenbeek.

As is apparent from the above history of the matters relating to the representations in dispute, there are a number of confusing aspects to the evidence given by Mrs Klarenbeek, particularly at the resumption of the coronial inquest on 10 December 1992. In particular the evidence that her husband was shown only ‘head shots’ and that the Pattenden photoboard was not the one shown to her husband, does not seem to fit well with other evidence. A further matter that might be said to be confusing is the fact that her husband had said that the photograph of the man who had bought the gun was on the lower left, whereas subsequently at the time of giving evidence about this before the Coroner she used the phrase ‘third from the left’. On the other hand there are a number of matters which appear to me to be clearly established by the evidence, they are as follows:

(v)That Mr Klarenbeek was shown the Pattenden photoboard on 28 January 1989 and although his precise words were not recorded, he informed police that the image of the person to whom he had sold the Ruger did not appear on that photoboard;
(w)That when Mr Klarenbeek gave evidence at the coronial inquest on 31 August 1989, the only photographs that he had been shown prior to that time were those on the Pattenden photoboard;
(x)Notwithstanding that when he gave evidence before the Coroner from his hospital bed Mr Klarenbeek stated that he was not ‘100%’ able to identify the man on the photoboard to whom he had sold the Ruger rifle, he nevertheless unequivocally agreed with Mr Donald, then counsel for the accused, that ‘none of the people in the photographs’ was the man to whom he had sold the rifle;
(y)That at all times Mrs Klarenbeek maintained that the conversation that she had had with her husband was immediately after police had come and shown him some photographs. Notwithstanding the fact that she maintained to the Coroner that the photoboard her husband had been shown was different from the Pattenden photoboard, she maintained that he was shown twelve photographs with six photos along the top and six photographs along the bottom on something larger than an A4 sheet of paper. That is much more consistent with the Pattenden photoboard than it is with the Cotterill photographs.

The defence however place great reliance on the fact that Mr Klarenbeek was shown head shots of six persons who did not include the accused on 29 September 1989, in arguing that it is possible that the conversation that Mrs Klarenbeek had with her husband is a conversation which took place after he had seen the Cotterill photographs, rather than the Pattenden photoboard. However, in my view, a number of issues arise in respect of that submission. First, there is no suggestion that of the six photographs shown to Mr Klarenbeek by Mr Cotterill, that among them was a photograph of the person who purchased the Ruger. Therefore there would be no reason why Mr Klarenbeek would tell his wife that the photograph of the man who bought the Ruger was amongst the photographs, but that he had told the police the opposite. Furthermore, Mrs Klarenbeek at all times said that her husband had been shown twelve photographs. She described the photographs as being on an A4 sheet, whereas the evidence is that the Cotterill photographs were individually placed before Mr Klarenbeek by Mr Cotterill.

Furthermore, as is clear from the evidence referred to above, Mrs Klarenbeek was present on an occasion when her husband described to police a firearm that he had sold from the premises. As stated above, there were two discussions police had with Mr Klarenbeek about the sale of the Ruger 10/22 rifle prior to Detective Cotterill attending to show Mr Klarenbeek the six polaroid photographs of men other than the accused. Mrs Klarenbeek said in evidence on 10 December 1992 that what she told Sergeant Nyveld that her husband had said to her was true, and furthermore she agreed that he had said it to her ‘after the police had gone when they had shown some photographs’. She said that he was shown twelve photographs on a board. She repeated several times that there were twelve photographs that her husband was shown. She indicated they were on a square a little bigger than an A4 page ‘on its side’. She said that her husband was shown the photographs ‘one time’. This is consistent with the evidence that her husband gave before the Coroner on 31 August 1989 that he had been shown folders of photographs of men ‘once’.

Accordingly, the probabilities are that, notwithstanding the issues raised by Mrs Klarenbeek nearly three years later at the coronial inquest, about ‘head shots’ and her statement that the photoboard shown to her was different from the Pattenden photoboard, she was not referring to any discussion had with her husband after he was shown the Cotterill photographs, but rather that the conversation took place after, as she said, the police visited her husband on one occasion only with photographs of twelve people on a board. In all the circumstances, I do not consider it is speculative, to say that it would be open to the jury to conclude that the conversation in question took place at that time. Of course the defence submits that it is open to conclude that the discussion in question occurred after Mr Klarenbeek was shown the Cotterill photographs. There is no basis to exclude evidence merely because competing inferences are open, that being a matter for the jury.

As for the submission made on behalf of the accused that there is no inconsistency between what Mr Klarenbeek told his wife, and what he later said at the coronial inquest, there is in my view a clear inconsistency. Whilst his statement that he could not pick out the man to whom he sold the Ruger ‘100%’ can be seen as equivocal, his response to Mr Donald’s questioning was unequivocal. Mrs Klarenbeek’s various representations that her husband told her that he recognised the man to whom he sold the Ruger, from the photographs that he had been shown, are equally unequivocal. If accepted by the jury, this is cogent evidence. It is apparent that upon evidence being admitted of a representation by Mr Klarenbeek that he was unable to recognise any male person depicted in the photographs as being the person who purchased the Ruger 10/22 from him barely four weeks earlier, and of his representation that ‘none of the people in the photographs was the man’ who he sold the gun to, in answer to Mr Donald at the inquest on 31 August 1989, the evidence of Mrs Klarenbeek ‘could substantially affect the assessment of his credibility’. Certainly the evidence tends to prove that Mr Klarenbeek knowingly or recklessly made a false representation at both times, but particularly when he was under an obligation to tell the truth at the coronial inquest. The representations contained in the s 67 notice relating to Mr Klarenbeek (representations 6(c)) and contained in the s 67 notice relating to Mrs Klarenbeek (representation 3(c)) are therefore, in my view, admissible.

Did the accused have a reasonable opportunity to cross-examine Mrs Klarenbeek within the meaning of s 65(3)(b) of the Act

The issue of whether or not the representations sought to be relied upon by the prosecution could be admitted under s 65(3) of the Act consumed a considerable part of the earlier submissions made by both parties at a time when the prosecution sought to rely upon ss 62 and s 65 of the Act. The prosecution no longer seeks to rely upon s 65 of the Act, as it contends that the representations upon which it relies are admissible under ss 59 and 60 of the Act on the basis that the representations are to be admitted because they are relevant for a purpose other than proof of an asserted fact. Accordingly, although s 65(3) of the Act is not the basis upon which the prosecution seeks to have the evidence admitted, it appears to me that the matters that are the subject of s 65(3)(b) of the Act remain relevant to the general issue of fairness. Accordingly, I consider it appropriate to consider the arguments that were advanced by the parties at the time that the prosecution sought to have Mrs Klarenbeek’s evidence at the coronial inquest admitted into evidence at the trial pursuant to s 65(3) of the Act.

It is submitted on behalf of the accused that it is far from clear that at the time that Mrs Klarenbeek gave evidence the accused was aware of her representations. It is submitted the expression ‘reasonable opportunity’ where it appears in s 65(3)(b) of the Act imports a knowledge and understanding by the accused of the evidence to be given which might affect him. It is submitted that there is no evidence to suggest that the disputed representations were ever brought to the attention of the accused so that he could make an informed decision as to whether or not to appear at the inquest. On this basis the defence submits that unless the accused had notice of the Klarenbeek evidence, its likely impact upon him, and had the opportunity to be legally represented at the inquest, it cannot be said that he had a reasonable opportunity to cross‑examine the person whose representations are now sought to be admitted.

The prosecution has provided a detailed response to the submission made on behalf of the accused that he did not have a reasonable opportunity to cross‑examine Mrs Klarenbeek. The prosecution submits that it is clear that the accused was notified that evidence would be led that would affect his interests. It is submitted that he was on notice that evidence had been called from Mr Webb, which evidence linked him to the Klarenbeeks’ residence. Mrs Klarenbeek gave oral evidence at the inquest on 23 November 1990 and again on 10 December 1992 after it had been re-opened. Although the accused was not represented on either occasion, the prosecution submits that ‘it is unequivocal that he could have been present and he could have cross examined the witness’. It is submitted that it is clear that the accused knew of his entitlement to be represented and to cross‑examine witnesses at the inquest.

History of the accused’s legal representation at the coronial inquest

The first part of the inquest commenced on 15 May 1989. Mr Pilkinton sought and was granted leave to appear for the accused. When the matter was next in court on 21 August 1989, Mr Donald sought and was granted leave to appear. Mr Donald represented the accused until 30 March 1990, on which day he sought leave to withdraw and advised the court that Mr Pappas would seek leave to appear. When the matter was next in court of 5 April 1990, Mr Pappas sought and was granted leave to appear for the accused. Mr Pappas represented the accused until 22 June 1990, on which day he sought leave to withdraw. Subsequently Ms Ryan sought and was granted leave to appear for the accused between 22 June 1990 and 2 July 1990 when she sought leave to withdraw. Mr Hill then applied for and was granted leave to appear for the accused. Mr Hill remained instructed until 17 July 1990 on which day he sought leave to withdraw. The accused then remained unrepresented until 29 January 1991, when Mr Crispin QC sought and was granted leave to appear. On 25 February 1991, Mr Crispin advised the Coroner that he was no longer instructed to appear and sought leave to withdraw. On 11 March 1991, Mr Bodor QC sought and was granted leave to appear for the accused. Two days later he advised the Coroner that he would no longer be appearing for the accused. The Coroner commented that he regretted that the accused was not represented, but noted that that was his choice, to which Mr Bodor said ‘It’s a matter of his choice, yes, your Worship. Our instructions are withdrawn’. On 22 March 1991, Mr Roulstone, a solicitor, sought and was granted leave to appear for the accused and then sought time, together with Senior Counsel, to prepare submissions, The Coroner granted an adjournment until 17 April 1991 saying at the time:

I’ve said many times on the public record that it is better for all concerned particularly for me and the interests of justice, that Mr Eastman be represented. And I’ve said that, and I continue to say it, but I’ve got to balance that against delaying the inquest of course.

Upon the matter being listed for hearing on 17 April 1991 Mr Winneke QC of Counsel who was then assisting the Coroner advised the Coroner that the accused was again unrepresented and that he had had a telephone call from Dr Woods of Senior Counsel who informed Mr Winneke that Dr Woods was no longer acting for the accused. The Coroner responded:

Yes, well, that accords with what I thought was the situation. I must say without any criticism of anyone, it’s an undesirable situation which we’ve tried to avoid for many months, but it’s a matter between Mr Eastman and others.

Mr Eastman remained unrepresented for the reminder of the first inquest.

The inquest was re‑opened on 18 November 1992. On 16 November 1992, during the hearing of the application to re‑open the inquest, the Coroner noted on the transcript that he would arrange for the accused to be notified that the inquest was to be re‑opened on 18 November 1992. The Coroner stated that the accused would be requested to attend as the evidence may ‘affect his interest’. The Coroner further observed that the correspondence to be sent to the accused would include a suggestion that it would be in his interest to get legal advice and representation.

On 18 November 1992, the Coroner read onto the record and exhibited a letter addressed to the accused and dated 16 November 1992 confirming the above matters. Evidence was given by the Acting Senior Bailiff of the ACT Magistrates Court on 18 November 1992 that he had attended at the residence of the accused on 16 November 1992 and had spoken with him. The accused had refused to accept the letter from the Coroner. The bailiff affixed the letter to the accused’s door and observed the accused remove the letter from the door. The accused followed the bailiff down the stairs and attempted to throw the letter inside the car as the bailiff opened the door. The letter was then picked up by the person who had accompanied the bailiff and placed in the letter box of number 20 Jerilderie Court, the letter box for the accused’s then residence.

At the end of proceedings on 18 November 1992 the Coroner confirmed that he would have the transcript of that day’s proceedings delivered to the accused. On 25 November 1992 no evidence was taken and proceedings were adjourned to 30 November 1992. A further letter from the Coroner was sent to the accused on 25 November 1992 advising him that evidence that affected his interest would be called on 30 November 1992 and inviting him to attend, with legal representation, if he so desired. Enclosed with the letter was a transcript of the evidence taken on 18 November 1992. There is no doubt that the accused received the letter from the Coroner dated 25 November 1992, because he responded to it by letter dated 27 November 1992. On 1 December 1992 the Coroner marked for identification the letter from the accused addressed to him dated 27 November 1992. The Coroner noted that a copy of the transcript of the proceedings on 1 December 1992 would be sent to the accused notifying him of further sitting dates of the inquest.

On 10 December 1992 Mrs Klarenbeek gave evidence. The accused did not appear. On 18 December 1992 the Coroner confirmed that correspondence had been sent to the accused on 14 December and 17 December 1992. The Coroner’s letter to the accused dated 14 December 1992 was read onto the record. The letter enclosed a copy of the transcript of earlier proceedings and advised the accused that it was expected that final submissions would take place on 18 December 1992. However, Mrs Klarenbeek’s evidence had been taken in closed Court and the accused was not provided with a copy of the transcript of her evidence. Nonetheless, it is apparent that the accused was on notice as to the dates of the inquest, knew of his entitlement to be represented and that, had he attended, he would have had an opportunity to cross‑examine the witnesses called during those proceedings including Mrs Klarenbeek.

In the circumstances I consider it to be clear that it was the decision of the accused not to engage in the inquest, which he well knew was taking place, that caused him not to be present at the time that Mrs Klarenbeek gave evidence.

A new case or an attempt to cure evidential deficiencies?

In addition to the foregoing objections on behalf of the accused to Mrs Klarenbeek’s evidence, it is further submitted that even if the evidence is admissible it should be excluded. First, it is argued that the prosecution is seeking to cure evidential deficiencies in its case and, as a matter of fairness, it should not be permitted so to do. It is submitted that the proposed introduction of the purported representations made by Mr Klarenbeek to Mrs Klarenbeek, and her evidence given at the coronial inquest, represent a significant departure from the evidence that was led at the time of the first trial. Mrs Klarenbeek was still alive at the time of the first trial, but was not called to give evidence. The defence further submits that the prosecution made no attempt to introduce the evidence prior to 24 April 2018 and that the current submission made on behalf of the prosecution is contrary to the position previously taken by the prosecution. It is submitted that the ‘non‑identification’ of the accused by Mr Klarenbeek was admitted into evidence at the time of the first trial (I reviewed the convoluted history of this aspect of the matter in R v Eastman (No 27)). Accordingly, the defence argues that the prosecution was clearly aware of the previous representations of Mrs Klarenbeek at the time of the first trial, but did not seek to lead her evidence at that time. It is submitted that to now admit the evidence as proposed by the prosecution would be unfair to the accused.

Furthermore, it is argued by the defence that the evidence now sought to be relied upon by the prosecution:

…. is significant evidence that tends to support the identification evidence of Mr Webb, and which greatly impacts on the defence’s reliance on Mr Klarenbeek not selecting [the accused] from the Pattenden photoboard, and the description which he gave to police of the man who bought the rifle.

It might be observed at this stage that this submission of the defence neatly summarises what the prosecution submits is the probative value of the evidence of the representation.

It is conceded by the defence that ‘this additional evidence does not change the Crown case from one which alleges [the accused] was the purchaser of the Klarenbeek rifle’. However it is submitted that the additional evidence adds substantially to the weight of evidence against him. It is submitted that this is the very point made by Kirby J in his, (albeit dissenting) judgment in R v Taufahema [2007] HCA 11; 228 CLR 232 where he stated at [109] that:

Repeatedly, this Court, intermediate courts and other courts, including the Privy Council, in similar terms, have stressed that:
"It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant."

In response the prosecution relies upon R v Taufahema [2007] HCA 11; 228 CLR 232 where the majority at [67], after having considered the relevant authorities stated:

These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.

The prosecution submits that its reliance on representations made by Mr Klarenbeek to his wife about the purchaser of the gun does not constitute a change to its case, let alone a substantial change. It is submitted that it has always been the prosecution case that the accused was the purchaser of the Klarenbeek Ruger, and that the introduction of this evidence is not an attempt to cure an evidential deficiency, but is simply further evidence bolstering the prosecution’s case. The prosecution submits that it is not a different case, but merely an invitation to the jury to engage in an additional form of reasoning.

In my view to admit the evidence of Mrs Klarenbeek would not be a change to the way in which the prosecution put its case at the first trial, as compared with how it intends to put its case at the second trial. It is, and was at the first trial, the prosecution’s case that it was the accused who purchased from Mr Klarenbeek the Ruger rifle which was used to kill Mr Winchester.

Furthermore, the complaint made on behalf of the accused that the prosecution did not seek to lead the evidence of Mrs Klarenbeek in circumstances whereby the evidence of Mr Klarenbeek’s ‘non-identification’ was admitted into evidence at the first trial, does not fairly take into account the precise circumstances in which the ‘non-identification’ came into evidence in the first trial. Those circumstances were clearly set out by the Full Court in Eastman v The Queen (1997) 76 FCR 9 at 74 and by me in R v Eastman (No 27) at [10]-[11]. To say that the evidence of ‘non‑identification’ was admitted into evidence at the first trial, and that the prosecution could have sought to call Mrs Klarenbeek at that time, ignores the circumstances that the evidence of Mr Klarenbeek given at the Coronial inquest was at that time inadmissible, and that it was counsel for the accused who introduced the ‘non‑identification’ into evidence in the course of the cross‑examination of Mr Pattenden. It was counsel for the accused who stated to the Judge that he would accept that the evidence be admitted on a ‘Subramaniam type of situation’. The submission also ignores the conclusions of the Full Court at 173 that:

Although the import of s 60 was not considered, the trial judge at the time did not admit the Klarenbeek representation for use as evidence of the truth of the fact asserted. An express ruling limiting the use to be made of the evidence was within the power of the Court under s 136. In reality, the trial proceeded as if such an order had been made to reflect the basis on which the evidence was admitted. The evidence having been admitted for a limited purpose, it remained for the [accused] to make application to have the Klarenbeek representation admitted as evidence of its truth. One course would have been to give notice under s 67 of an intention to adduce the evidence under s 65(8). This was never done, although at least by 6 June 1995 it must have been apparent that this was the procedure required by the Evidence Act.
As it was, by the time the [accused] applied for a direction under s 67(4) it was far too late in the trial process to permit the Crown to call retaliatory evidence. As that course was not open, the Crown would have suffered unfair prejudice if a direction were made that had the effect of allowing the Klarenbeek representation to be used as evidence of the truth of the fact asserted. That would also have been the case if the [accused] had sought to call in aid s 60 at that late stage.

Furthermore, as the Full Court said at 174:

But whatever the explanation, had the application been made at an appropriate time, before the close of evidence, in our opinion one of two things would have happened. Either by an express exercise of the discretion under s 136 the use of the evidence of the Klarenbeek representation would have been limited to a non-hearsay purpose, or the Klarenbeek representation would have been admitted for a hearsay purpose and the Crown would have been permitted to adduce the evidence of the other representations made by Mr Klarenbeek. The former situation is, effectively, what resulted from the ruling made on 27 October 1995. The latter situation would have placed before the jury evidence of the other previous representations by Mr Klarenbeek. The information before this court about those representations suggests that the additional evidence would have been more likely to assist the Crown case than the defence.

In all the circumstances, whereby all parties in the first trial were acting on the basis that the ‘non-identification’ evidence was introduced by counsel for the accused, but not as to the truth of the representation, it is difficult to see how the evidence of Mrs Klarenbeek as to what her husband told her about the ‘non-identification’ would have been admissible at that time as being relevant to any fact in issue. Whatever the position, in all the circumstances it cannot be said that there was any unfairness created by the ‘failure’ to call Mrs Klarenbeek to give this evidence, nor can it be said that the prosecution acted unfairly in failing to do so or is now acting unfairly in seeking to rely on that evidence if the Klarenbeek representations are admitted into evidence.

Further submissions made by the defence as to why representations 6(c) and 3(c) should be excluded.

Further, and in addition to the above submissions, the defence argues that the evidence of Mrs Klarenbeek has serious defects, is of low probative value and is highly confusing, and that it should be excluded pursuant to s 135(b) of the Act. In the alternative, the defence submits that the evidence is unfairly prejudicial to the accused in that it cannot be tested, both representors now being deceased, and that there is a risk that the evidence will be given greater significance by the jury than would otherwise be warranted. It is submitted further that even if I did not consider that the evidence should be excluded pursuant ss 135 or 137 of the Act, it is nevertheless open to me to exclude it pursuant to the residual discretion in the Court to exclude evidence which is unfair to an accused.

In regard to the submission that Mrs Klarenbeek’s evidence is confusing, the principal concern of the defence is related to Mrs Klarenbeek’s evidence about the photoboard which was shown to Mr Klarenbeek. In the course of giving evidence before the Coroner Mrs Klarenbeek stated that the photoboard that her husband was shown was not the photoboard shown to her at the inquest. In addition she gave evidence at the inquest that the person her husband told her he recognised on the photoboard he was shown was ‘third from the left’. The defence submits that it is a concern that although Sergeant Nyveld made a statement on 28 November 1990 and gave evidence at the inquest on 3 December 1990, he made no reference to Mrs Klarenbeek having been shown a photoboard at her home on 21 November 1990 nor of her saying ‘that is not the photoboard’. The defence submits that it is of further concern that Sergeant Nyveld’s notes of the ‘coffee shop’ conversation that occurred during the inquest lunch break on 23 November 1990 appears to suggest that this was the first time that Mrs Klarenbeek disclosed to police that her husband had identified the man who bought the gun. The defence submits that the above matters were not raised with Mrs Klarenbeek when she gave evidence at the inquest and now cannot be raised with her directly.

Furthermore, the defence submits that it is of concern that the persons who acted as interpreters at the inquest, being Sergeant Nyveld in 1990 and Constable Kooyman in 1992, do not appear to be qualified interpreters and their level of proficiency in the Dutch language is not known. In this regard I note that the note prepared by Sergeant Nyveld on 26 November 1990, relating to his conversation in the Dutch language with Mrs Klarenbeek on 23 November 1990, appears to demonstrate a high level of proficiency in both the English and Dutch language. Of more significance is the fact that Sergeant Nyveld interpreted Mrs Klarenbeek’s evidence for some hours on the morning of 23 November 1990. A reading of the transcript reveals that no question arose in the minds of those present as to the standard of interpretation and it appears that Sergeant Nyveld was interpreting simultaneously at times which would require a high level of proficiency in the Dutch language. It should in addition be noted that Mrs Klarenbeek spoke English to a reasonable degree and there is no suggestion of her seeking to correct Sergeant Nyveld.

The defence submits that a further example of the evidence being confusing is that at the coronial inquest on 10 December 1992, Mrs Klarenbeek appeared to agree with the Coroner when he stated to her that her husband was shown the photoboard at the hospital and that she was not present. It is submitted on behalf of the accused that the fact that the Coroner put that was incorrect, as the inquest transcript concerning Mr Klarenbeek’s evidence at the hospital demonstrates that Mr Klarenbeek was not shown a photoboard and Mrs Klarenbeek was present during the hearing at the hospital.

In fact the following section of transcript suggests to me that Mrs Klarenbeek was in fact correcting the Coroner in his incorrect suggestion that Mr Klarenbeek had been shown the photoboard at the hospital, there being no doubt that she was present at the time:

Mr Ibbotson:      You said that Louis said that to you after the police had gone when they had shown some photographs, is that right?
Mrs Klarenbeek: Yes.
Mr Ibbotson:      Am I correct that Louis was only shown one lot of photographs on a board of people?
Mrs Klarenbeek: Twelve.
Mr Ibbotson:      Yes, but only one time he was shown them or a number of times?
Mrs Klarenbeek: No, one time.
HIS WORSHIP:   He was shown on another occasion in hospital. You were not there then? Were you there then when we spoke to Louis?
Mrs Klarenbeek: No, not at the hospital.
Mr Ibbotson:      No, I do not think he was shown one in hospital.

In response to the discretionary exclusion argument raised by the defence relating to the question of asserted confusion on the part of Mrs Klarenbeek as to exactly where the buyer was on the photoboard, the prosecution submits that it is ‘a false issue’ because the prosecution does not intend to lead the evidence as to where Mrs Klarenbeek said Mr Klarenbeek had told her the photograph of the buyer of the Ruger rifle was positioned on the photoboard. The prosecution submits that the relevant issue is the fact that Mr Klarenbeek told his wife that the buyer of the rifle was on the photoboard, whereas Mr Klarenbeek had told the police and the Coroner that the buyer was not on the photoboard. Further, the prosecution submits that this is evidence that the seller sold the murder weapon to the accused and in those circumstances it is highly probative. The prosecution further argues that as the evidence of Mrs Klarenbeek is hearsay that appropriate directions should, and will, be given to the jury as to the care to be taken in relation to such evidence.

I accept that there are reasons to say that Mrs Klarenbeek’s evidence is confusing. Her statement at the inquest that the Pattenden photoboard was not the one shown to her husband, and her description of the position of the man identified by her husband as being ‘3^rd from the left’ can be said to be confusing. However, no doubt the prosecution will, through the evidence, identify precisely which photographs were shown to both Mr and Mrs Klarenbeek. The issues in question will be clear to the jury. In such circumstances I do not consider that the evidence is so confusing that I should refuse to admit the evidence under s 135(b) of the Act.

Representation 3(a)

The defence submits that to lead the evidence that Louis Klarenbeek told his wife about test firing the Ruger 10/22 rifle and finding that it did not shoot straight, is to lead second‑hand hearsay in that the prosecution is seeking to rely upon the truth of the assertion. That appears to me to be correct.

Furthermore, it is submitted that for the evidence to be led through Mrs Klarenbeek’s evidence is not the best evidence, and it is unnecessary because Mr Klarenbeek himself gave evidence at the inquest confirming his interview with Detectives Cotterill and Davis, during which he said that the rifle did not shoot straight. As observed by the defence, the accused was at that time represented by his then counsel Mr Donald.

Representation 3(b)

The defence submits that representation 3(b) is a series of representations. The representations contained in 3(b) are that Mr Klarenbeek told his wife that he sold the Ruger to a man, who paid cash, who attended at their home on 31 December 1988 and 1 January 1989, and on both occasions without a car.

In oral submissions the prosecution submitted that the representation reveals the person’s intention to come back the next day. I agree with the defence’s submission that it does not do that, but merely demonstrates that the man did return on a second day. In my view the representations contained in representation 3(b) are second‑hand hearsay in that the prosecution seeks to rely on them for their truth.

Orders

Accordingly, in relation to the further s 67 notices filed by the prosecution:

(a)dated 24 April 2018 relating to additional representations made by Mr Klarenbeek to his wife, Mrs Klarenbeek; and
(b)dated 24 April 2018 relating to representations made by Mrs Klarenbeek;

I propose to make the orders set out below.

That the previous representation made by Mr Klarenbeek to Mrs Klarenbeek, about test‑firing the Ruger 10/22 rifle and finding that it did not shoot straight allegedly made by Mr Klarenbeek to Mrs Klarenbeek on an unknown date shortly after Mr Klarenbeek test‑fired the Ruger at a quarry, is not admissible.

That the previous representation made by Mr Klarenbeek to Mrs Klarenbeek, about selling the Ruger to a man who paid in cash and who had attended his house on 31 December 1988 and 1 January 1989, both times without a car, allegedly made by Mr Klarenbeek to Mrs Klarenbeek in conversations between them which took place on the weekend of 31 December 1988 and 1 January 1989 at an unknown time at the Klarenbeeks’ house, is not admissible.

That the previous representation made by Mr Klarenbeek to Mrs Klarenbeek, about identifying the purchaser of the Ruger rifle allegedly made on 28 January 1989 at the Klarenbeeks’ house at an unknown time after police had been to the house in the course of investigating the murder of Mr Winchester and showed Mr Klarenbeek a photo of the accused, is admissible.

That the previous representations made by Mrs Klarenbeek:

(a)About her husband, Lodewyk (‘Louis’) Klarenbeek, selling firearms from their home; and
(b)About a particular man who came to the house, without a car in sight, on Saturday 31 December 1988 and Sunday 1 January 1989 to buy a firearm; and
(c)About Mr Klarenbeek’s disclosure to Mrs Klarenbeek that he recognised in a police photoboard a photograph of the man who purchased the Ruger rifle; and
(d)That Mrs Klarenbeek observed the purchaser of the firearm leave the house on 1 January 1989 wearing a darkish brown jacket and carrying the firearm with the strap loosely over one shoulder;

are admissible.

That until further order these orders and the reasons for this ruling are not to be published or disclosed other than to the parties and their representatives.

I certify that the preceding one-hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ.

Associate:

Date: 9 July 2018

[2018] ACTSC 197

4 July 2018