R v Eastman (No 48)
[2018] ACTSC 276
•4 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 48) |
Citation: | [2018] ACTSC 276 |
Hearing Date(s): | 2 October 2018 |
DecisionDate: | 4 October 2018 |
Before: | Kellam AJ |
Decision: | See [44] |
Catchwords: | CRIMINAL LAW – EVIDENCE – whether prosecution entitled to rely upon evidence as establishing consciousness of guilt |
Cases Cited: | R v Howard [2005] VSCA 235; 156 A Crim R 343 R v Nguyen [2001] VSCA 1; 118 A Crim R 479 |
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(s): | SCC 111 of 1992 |
Kellam AJ:
In the course of his opening address, Mr Thangaraj referred to the evidence that he anticipated would be led from Senior Constable Coutts as to an observation made by Mr Coutts on 10 January 1989, of the accused in a car‑park near the back of the City Police Station. He stated that Mr Coutts would say that the clothes being worn by the accused were ‘quite formal’. Nothing else was said in the opening address as to the clothes said to have been worn by the accused that day.
Subsequently, in the course of his opening address, Mr Thangaraj referred to the evidence that the prosecution intended to lead as to statements made by the accused to Detectives Jackson and Thomson in the course of the afternoon of 11 January 1989, when the accused claimed to have no memory of where he had been and whether he had gone out to get something to eat on the previous evening. He said that the prosecution would argue that the accused ‘deliberately lied because he was covering up the fact that he had murdered Mr Winchester’. Apart from that matter, no other post-offence conduct of the accused was included in the prosecution’s opening address as being evidence of a consciousness of guilt.
Likewise the Amended Case Statement, filed on 24 August 2015, although referring in some detail to the way in which the prosecution sought at that time to rely upon what the accused is alleged to have said to Detectives Jackson and Thomson on 11 January 1989, does not suggest that any post‑offence conduct of the accused was to be relied upon in such a manner. The Amended Case Statement included a detailed summary (in [8]) of the ‘Lies or False Denials’ which the prosecution, at that stage, sought to rely upon. There was no reference to there being any reliance by the prosecution upon evidence of Mr Coutts as to what the accused was wearing on the afternoon of 10 January 1989.
However, in the course of evidence given before the jury, a number of matters arose upon which the prosecution now seeks to rely, either as consciousness of guilt, or as evidence that is in any event relevant to the considerations of the jury.
Mr Coutts gave evidence on 18 July 2018 (at T1262-T1263) that he had observed the accused in the car‑park near the City Police Station. He stated that the accused was wearing:
…. a fawn coloured shirt and fawn coloured pants. I think the pants were probably a little bit darker than the shirt.
Although in the course of cross‑examination Mr Georgiou asked a number of questions relating to the manner in which Mr Coutts claimed to have seen the accused through the left hand window of the car he was driving at the time, no specific question was asked of Mr Coutts as to his evidence, given in evidence‑in‑chief, relating to the clothing worn by the accused.
The evidence of Mr Peter Drennan was recorded on 23 August 2018. On 30 August 2018 the recording of his evidence was played to the jury. Mr Drennan, who was a detective constable in the AFP Crime Branch in January 1989, gave evidence in respect of the search warrant which had been executed at the accused’s premises on 18 January 1989. Mr Drennan was the holder of the warrant. Mr Georgiou cross‑examined Mr Drennan about the terms of the search warrant. In particular Mr Drennan gave evidence that included in the terms of the search warrant was an item described as ‘clothing’ consisting of a ‘fawn‑coloured open‑necked shirt and trousers of a similar colour but not limited to these specific items’. Mr Drennan agreed that if any of the items listed on the search warrant were found at the premises, they were to be seized. The search warrant in question was not tendered at that time nor, indeed, subsequently.
On 4 September 2018, Mr Nelipa, who in January 1989 was a crime scene examiner, gave evidence as to his attendance upon the premises of the accused at 20 Jerilderie Court, Reid on 18 January 1989. On that date he attended with a number of other police personnel when search warrants were executed in respect of the accused’s premises and his Mazda car. In the course of Mr Nelipa’s examination‑in‑chief on 4 September 2018 the property seizure record dated 18 January 1989 was tendered through him. It became Exhibit C239. Mr Georgiou on behalf of the accused asked Mr Nelipa questions relating to a number of items which were seized by police and, in particular, what was being looked for by Mr Nelipa in relation to such seizures.
In the course of Mr Nelipa’s re‑examination, Mr Lee, on behalf of the prosecution, asked the following questions and was given the following answers by Mr Nelipa (at T3176):
You were asked a number of questions about items that were seized on 18 January 1989 and the purpose of seizing a number of them was for examination of gunshot residue and other trace elements?---Yes.
Were those items seized pursuant to a search warrant?---Yes.
Which listed a number of items of relevance?---Yes.
Was one of the items that was listed on the search warrant police were looking for an open neck shirt that was fawn in colour?---I'm sorry, I don't recall.
Subsequently, at T3177, Mr Lee asked Mr Nelipa if a fawn coloured, open‑necked shirt had been seized, to which Mr Nelipa answered ‘I don’t recall’. Mr Lee then asked Mr Nelipa to look at Exhibit C239 and asked as to ‘whether or not an open-neck, fawn coloured shirt was seized’. Once again the answer given by Mr Nelipa was that he did not recall. Mr Nelipa was then asked as to whether he had any notes about examining an open‑neck, fawn coloured shirt, to which he answered:
No. The only thing that I've got here is a white striped, short-sleeved shirt which was examined, DHE19.
11. Shortly after this evidence, and in the absence of the jury, Mr Georgiou expressed concern about the questions asked in re‑examination of Mr Nelipa. He said:
…. The concern we now have is that there might be suggested that relevant clothing, if we are to accept Mr Coutts’s evidence, had been disposed of, or in other words, it could have been seized. Was - or should have been seized, it wasn’t. Now we don’t know, from Mr Nelipa, and I suspect given the answers, that he wouldn’t know what clothing remained in the wash and no itemised inventory of that exists.
12. The reference to ‘what clothing remained in the wash’ was not a reference to any evidence given in the trial, but apparently related to a statement made by Mr Nelipa that:
…. there was laundry partially washed in Mr Eastman’s residence on 18 January 89 but that was not seized and was not included in a photograph, which could have included the shirts.
It was then determined that the matter could be clarified by Mr Nelipa being further cross‑examined by Mr Georgiou in the absence of the jury. Mr Nelipa was taken by Mr Georgiou to his statement (at [299]) which Mr Nelipa read as follows:
On the 3 February 1989, I had a conversation with Constable Trevor Coutts when he was visiting forensic services division. Constable Coutts informed me that he saw Mr Eastman on the afternoon of 10 January 1989. I showed Constable Coutts a colour photograph which I took of the clothes in the wardrobe of the main bedroom at 20 Jerilderie Court. Constable Coutts informed me that none of the shirts depicted in that photograph was similar to the one he saw Eastman wearing on the 10 January 1989. It should be noted that there was a [sic] laundry partially washed in Mr Eastman’s residence on 18 January 89 but that was not seized and was not included in a photograph which could have included the shirts. There was also the shirt that Mr Eastman was wearing on 18 January 89. I advised Detective Ninness of this by way of a VDU message.
14. Mr Nelipa said he had no memory of what was being washed, no notes and no photographs of the ‘partially washed’ clothing. Mr Nelipa did not give the above evidence before the jury, nor did either party seek to recall Mr Coutts, nor for that matter any one of the group of police who attended upon the execution of the search warrant. Those persons included Mr Ninness and Mr Pattenden who had previously given evidence, but who could have been recalled.
As stated above, the prosecution submits that it is entitled to rely upon the evidence of Mr Coutts’ description of the clothing, together with the clothing listed in the record of the seizure, to demonstrate that the accused was wearing a fawn shirt on 10 January 1989 that was not at his premises at the time of the search on 18 January 1989 as being evidence of either ‘consciousness of guilt’ or as ‘part of a plan to dispose of clothes that were worn on the night, or the day and night of the murder’.
It is submitted by Mr Thangaraj that the fact that evidence has been adduced through Mr Coutts as to what he saw the accused to be wearing on the day of the murder, together with the fact that the search warrant specifically referred to a fawn shirt and the fact that the property seizure records show that no such shirt was found in circumstances where ‘obviously police officers who are part of a search, who are tasked on a search and are there for a number of hours, would be looking for matters that are specifically referred to in a warrant’ are obvious points which the prosecution is entitled to put to the jury.
In response Mr Georgiou first of all makes the complaint that, if the prosecution seeks to rely upon this evidence as a consciousness of guilt argument, the defence has suffered unfairness. He makes the same submission in relation to the evidence in question, even if the prosecution does not, or is not permitted to, rely upon the evidence as consciousness of guilt. In this regard Mr Georgiou submits that ‘whether it be explicitly or impliedly’ the prosecution will be suggesting that ‘this is the shirt that Mr Eastman was wearing when he shot Mr Winchester and he got rid of it’. Mr Georgiou’s complaint is that if the prosecution seeks to rely on the evidence in this manner, it should have been the subject of precise evidence, with the defence being given the opportunity to cross‑examine the relevant witnesses. Mr Georgiou submits that the issue arose only in the course of re‑examination of Mr Nelipa by Mr Lee on 4 September 2018. Another view, of course, is that it could be argued that the issue arose first when Mr Drennan was cross‑examined by Mr Georgiou on 28 August 2018 about the precise terms of the search warrant. It was in the course of that cross‑examination that it became clear that the search warrant related to an open‑necked fawn shirt. That said however, the evidence of Mr Coutts as to the fawn shirt had been given much earlier, on 16 July 2018.
18. Mr Georgiou relies upon the evidence of Mr Nelipa, given upon the voir dire, when asked by Mr Lee as to whether, if an item is listed on a search warrant he, Mr Nelipa, would have seized it ‘even if it was in the wash’. Mr Nelipa’s answer was:
Personally myself, no because I had no knowledge of what was in that search warrant. I was looking for things that are of interest to me and the detectives were looking for things that are of interest to them, and that's the way that particular team operated on the 18th.
Although it was submitted by the prosecution that the defence could have sought to have Mr Coutts recalled, it is submitted by Mr Georgiou that had the evidence of the shirt worn by the accused on 10 January 1989, and said to have been seen by Mr Coutts, been intended to be pressed as an issue relevant to the search of the accused’s premises on 18 January 1989, then the prosecution should have made an application to recall those persons involved in the search. Mr Georgiou submits that the prosecution could have then raised with such witnesses the issues concerning what was, and what was not, found, and whether or not photographs were taken. Mr Georgiou points out that no cross‑examination of Mr Coutts took place as to his evidence of the clothing that Mr Coutts said he saw the accused wearing in the car‑park on 10 January 1989, as the matter was not in issue at the time. Whilst Mr Georgiou concedes that in his evidence Mr Coutts referred to the clothing worn by the accused, that evidence, he submits, was in a context of it ‘not being known how the prosecution would rely upon the evidence’.
It is appropriate at this point to consider the somewhat unsatisfactory state of the evidence before the jury relating to these matters. First, the evidence‑in‑chief of Mr Coutts given before the jury on 16 July 2018 was that on the afternoon of 10 January 1989 he observed the accused in the car‑park near the City Police Station. He saw the accused walking from the direction of the court down Knowles Place towards the rear of the police station. He saw him looking into the rear windows of several police cars that were parked there. He said that the accused had ‘a fawn coloured shirt and fawn coloured pants’. He said ‘I think the pants were probably a little bit darker than the shirt.’ Mr Coutts was cross‑examined by Mr Georgiou as to his sighting of the accused. Mr Coutts said that when he first saw the accused, he, Mr Coutts, was getting into his car. He said that when he first saw the accused he was just turning into the car‑park. He said that the accused ‘was probably 50 metres down the carpark and I drove out onto London Circuit’. Mr Coutts said that he looked at the accused out of the side window of his car as he saw the accused walking down the car‑park. He said that he saw the accused through the left‑hand side, passenger window. Apart from referring to a fawn shirt, Mr Coutts gave no evidence as to whether the shirt worn by the accused was short sleeved or long sleeved, open necked or not, whether it was a buttoned shirt, or a polo‑shirt, or even a T‑shirt.
The next evidence relevant to a shirt is the evidence of Mr Drennan played before the jury on 30 August 2018, as to the fact that the terms of the search warrant contained reference to an ‘open‑necked fawn shirt’. The search warrant itself was not tendered as evidence before the jury. However, flowing from that piece of evidence is the property seizure record dated 18 January 1989. That record relates to the seizure of three pairs of tan trousers, two of which are stated to have been found in ‘robe in master bedroom’ and the third of which the accused was apparently wearing, as the specific location of the item is recorded as ‘Mr Eastman’. One or other of these trousers may well match the description of darker fawn trousers referred to by Mr Coutts in his evidence, although of course Mr Coutts gave no such evidence.
22. The property seizure record however describes only one shirt, being a ‘white striped short sleeved shirt’ which was also apparently worn by the accused at the time of the search because its specific location is recorded as being ‘Mr Eastman’. From this evidence the prosecution seeks to infer that because the police officers who were tasked with the search would be looking for matters that were specifically referred to in a warrant, and there being no shirt similar to that referred to in the warrant being said to have been seized in the property seizure record, it can be argued that the accused must have disposed of the shirt, seen being worn by him on the day of the murder. The prosecution contends that this evidence reflects either a consciousness of guilt, or, in the alternative, evidence of a plan to dispose of the clothes that were worn by the accused on the night of the murder.
23. In my view the evidence cannot be used as evidence of consciousness of guilt. It is simply too thin and insufficiently particular. That may be because, as Mr Thangaraj observed candidly, the point about the shirt observed by Mr Coutts allegedly not being found in the course of the search ‘only occurred to us during the trial which is why it wasn’t opened on’. The first problem, in my view, is that the evidence of Mr Coutts as to the nature of the shirt is, as I have pointed out above, no more than that it is a fawn shirt without any further particularity. I consider that there is some weight in the argument advanced by Mr Georgiou that ‘fawn’, as a description of colour, is subjective and unlike a black, white, red, yellow or blue shirt. That argument has some support in the observation by Mr Coutts that the trousers worn by the accused were a darker fawn, whatever that may mean. Furthermore, and of significance and likely by reason of the late raising of the issue, the evidence as to the conduct of the search has not been properly explored by either the prosecution or the defence.
The fact that a shirt resembling that seen by Mr Coutts was not found in the search, can only be established as an inference by reason of the fact that only one shirt appears on the property seizure record, and that appears to be the white, striped, short‑sleeved shirt which was being worn by the accused at the time the search warrant was executed. Had there been evidence of what was found at the accused’s premises, but not seized, and had Mr Coutts’ evidence of the description of the shirt he saw had more particularity, and had photographs been taken of the shirt seized and of any other shirts observed at the premises, and had these been put before the jury, and had Mr Coutts given evidence that the shirt seized and any other shirts photographed were different from the shirt he had observed the accused to be wearing, the inference sought to be drawn by the prosecution might have real cogency. However that is not the state of the evidence.
25. Leaving aside for the moment the lack of particularity in Mr Coutts’ description of the shirt observed by him, the fact that no shirt was seized other than the one the accused was apparently wearing is inexplicable. If it is the case that the only shirt found on the premises was the one being worn by the accused, that fact should have been, but was not, the subject of evidence.
It would appear however, although this is not the subject of evidence before the jury, that there was available to the parties, evidence of Mr Nelipa having in fact taken photographs of clothes in the wardrobe of the main bedroom at 20 Jerilderie Court, as referred to in [13] above. Mr Nelipa had in his statement referred to the fact that there was partially washed laundry in Mr Eastman’s apartment which ‘was not seized and was not included in a photograph which could have included the shirts [sic]’.
27. Although that evidence is not before the jury, I consider that it would be unfair in the light of the unsatisfactory nature of the evidence which has been put before the jury, and in the light of the evidence given by Mr Nelipa on the voir dire, to permit the prosecution to argue that an inference can be drawn, from the fact that a fawn shirt does not appear on the seized property document, that the accused had disposed of the shirt that he was seen wearing on the day of the murder of Mr Winchester, thus reflecting a consciousness of guilt on his part.
28. Furthermore, given the manner in which the case has been conducted, the purported reliance on consciousness of guilt comes at a very late stage, and after the conclusion of all of the evidence. The defence may well have adopted a different course in cross‑examination of Mr Coutts, Mr Nelipa and other witnesses who were present at the search of the accused’s premises, had it been known that the prosecution would rely upon the evidence in the manner proposed.
29. It is of course well known that when evidence of post‑offence conduct is introduced to support an inference of consciousness of guilt, it is often highly ambiguous and susceptible to jury error (see R v Nguyen [2001] VSCA 1; 118 A Crim R 479 per Winneke P at [20]). In the course of argument, Mr Georgiou referred me to R v Howard [2005] VSCA 235; 156 A Crim R 343 where Chernov JA in his judgment at [26] (with which Callaway and Vincent JJA agreed) stated that fairness demanded that if the prosecution intends to rely on consciousness of guilt, this should be made known to the court at the outset of the trial. However, Chernov JA stated further that:
If, for good reason, the Crown only decides to pursue such a course later in the trial, it should announce its intention to do so as soon as practicable, and before addressing the jury, and seek leave of the trial judge to press such an argument.
As stated above, although the issue may not have become apparent upon the evidence of Mr Coutts given on 16 July 2018, it had certainly arisen by the time of Mr Drennan’s cross‑examination on 23 August 2018 as to the terms of the search warrant. As is apparent, the issue was obvious to both the defence and the prosecution at the time of the re‑examination of Mr Nelipa on 4 September 2018. However, the matter of the intended use of such evidence was not raised by either the prosecution or the defence, at least before me, until nearly a month later, and after the evidence had closed.
31. For all of the above reasons, I do not grant leave for the prosecution to argue that the evidence relating to the shirt in issue reflects consciousness of guilt on the part of the accused.
I turn now to the alternative manner in which the prosecution seeks to put the evidence before the jury which, as I understand it, leaves open the inference that the accused disposed of the shirt he was seen to be wearing on 10 January 1989 between that date and 18 January 1989. In my view that submission suffers from difficulties that are similar to those to which I have referred in relation to the consciousness of guilt argument. The state of the evidence (that is both before and not before the jury) is so unsatisfactory that the assumption which the prosecution seeks to be made cannot safely be made. The jury of course will be unaware of the concession that Mr Nelipa made on the voir dire to the apparent effect, that the shirt he discussed with Mr Coutts on 3 February 1989, and following the execution of the search warrant some two weeks earlier, ‘could have included the shirts [sic]’ in the partially washed laundry items which were not seized and were apparently not photographed. Likewise the jury will be unaware that Mr Nelipa showed Mr Coutts a colour photograph of clothes in the wardrobe at the accused’s premises and Mr Coutts said that no shirt shown in the photograph resembled the shirt worn by the accused on 10 January 1989.
33. As stated above the evidence before the jury is unsatisfactory for a variety of reasons. However, Mr Thangaraj argues nevertheless that on the evidence before the jury he would be entitled to argue that in the circumstances whereby the prosecution case is that ‘this was a planned murder by a highly intelligent individual’ it ‘makes sense that the accused would dispose of the shirt’. He submits that such use of the evidence would form part of the circumstances and would not be a use of the principle of consciousness of guilt. He argues that ultimately the question is a matter for the jury. He submits that the jury has the evidence of the sighting of the fawn shirt by Mr Coutts, they have the evidence of the specific reference to the fawn shirt in the search warrant, and they have the property seizure record. He submits that there is no speculation in that ‘we know what was sought and we know what was found’. He argues that the evidence is not raised for the first time in closing, but was raised by the evidence and that counsel for the accused could have sought to have any of the witnesses who were present at the search recalled and, furthermore, could have cross‑examined Mr Nelipa in the presence of the jury about matters which arose on the voir dire, but chose not to do so. Mr Thangaraj argues that the prosecution is entitled to make such submissions as it seeks on the evidence which is before the jury, and counsel for the accused can make such submissions as he thinks fit, but in the end it is a matter for the jury.
34. Whilst I accept that an inference can be drawn, assuming that the search of the premises was conducted assiduously, that because an ‘open-neck fawn shirt’ was specifically referred to in the search warrant and no such shirt was seized, there was no such shirt on the premises, that matter could have been put beyond argument by evidence being given to that effect by the searching police. It would have been a simple matter for any of the detectives who attended the search of the accused’s premises on 18 January 1989, in the course of their evidence, to have been directed to the ‘shirt’ item referred to in the search warrant and asked what action had been taken to find such an item, and what was the result of such action.
Mr Thangaraj submits that such evidence would have added nothing. I disagree. That evidence would have established positively that care was taken in the search to find and seize relevant items. In this regard, the evidence given by Mr Nelipa on the voir dire that he had no knowledge of the terms of the search warrant does not assist in providing comfort that the inference sought to be drawn by the prosecution, as to the regularity of the search, is correct. Indeed it is apparent from the evidence that he gave as to what it was that he was interested in, being gunshot residue, blood stains, botanical matter and the like, that he should have had a vital interest in clothing to be examined and, if necessary, seized, which might have been worn by the accused in preceding days.
36. Finally, as a matter of concern to me, is the evidence given by Mr Nelipa on the voir dire. This evidence suggests, inexplicably, that there was little consideration given by police and by Mr Nelipa to the partly washed clothing found at the premises. If the evidence of Mr Nelipa in this regard was incorrect, then it could have been the subject of evidence to clarify it. The fact that evidence exists about the partly washed clothing which has not been explained and was not led before the jury does cause concern as to the fairness of the prosecution seeking to argue that an inference can be drawn from the evidence that is before the jury that the accused disposed of the shirt he was wearing on 10 January 1989.
I am troubled by the circumstances which have arisen. The fact is that the evidence before the jury as to the search is to the effect that a fawn shirt was specifically referred to in the terms of the search warrant and that no such article was seized. The jury may of course draw their own inferences from that evidence even in the absence of submissions by the prosecution. Of course, evidence of what was seized and what was found are two different things. The jury do not have before them the evidence of some things which were found but not seized, such as the contents of the wardrobe or the apparent fact that there was partially washed clothing which was not photographed or seized. It may be that the prosecution did not lead that evidence for tactical reasons, as to do so might have led to the evidence of the partly washed laundry being put before the jury. It may have been that once the defence understood the import of the evidence sought to be led by the prosecution, that a tactical decision was made not to seek to recall Mr Coutts and or the witnesses who attended the execution of the warrant, or to seek to cross‑examine Mr Nelipa further about his evidence given on the voir dire, all of which could have, depending upon the evidence that might have been given, strengthened the prosecution case. It may simply be that with the effluxion of time and possibly the inadequate recording of what took place in the course of the search, it was not possible to provide the evidence necessary to make clear the distinction between what was found and what was seized.
38. Whether those considerations are so or not, or whether the late realisation by both the prosecution and the defence, that the evidence had cogency, explains why the matter was not fully explored in evidence, does not resolve the present problem.
39. In the end, my conclusion is that the prosecution should not in all the circumstances be permitted to submit to the jury in its closing address that the evidence of the property seizure record establishes that the accused somehow disposed of the shirt that he was wearing on 10 January 1989, before the search warrant was executed eight days later.
40. The first step in my reaching that conclusion is that the evidence of Mr Coutts in describing the shirt, said to have been observed by him, lacks particularly. In this regard it should be observed that the search warrant referred to an ‘open neck fawn shirt’. Mr Coutts did not give evidence before the jury as to the shirt being open necked. The second step in reaching my conclusion is that, although the search warrant specifically referred to such a shirt, and there is no record of such a shirt having been seized, the evidence as to what was, or was not, found in the course of the search, as distinct from what was seized, is not before the jury.
41. Furthermore, it appears to me that to invite the jury to draw that inference goes beyond establishing another strand in the circumstantial case, and in effect invites the jury to reflect upon the state of mind of the accused in disposing of the shirt, which really would be an invitation to treat the evidence as evidence of consciousness of guilt ‘through the back door’.
42. For the above reasons I conclude that the prosecution should not be permitted to submit to the jury that the evidence leads to the conclusion that the accused disposed of the shirt in question.
43. Unfortunately the above conclusion does not resolve the issue of how the jury should deal with the evidence which has been put before them. As no submissions have been made as to how that matter should be dealt with in circumstances whereby I have ruled against the proposed use of the evidence by the prosecution, I refrain from dealing with the matter further. Obviously counsel should give consideration to that difficulty, which has arisen either by reason of the late consideration of the matter by the parties, or alternatively by tactical decisions made by both parties which have resulted in the jury not having all relevant evidence relating to the issue in question before them.
I order that the prosecution is precluded, in its closing address to the jury, from making submissions to the effect that the fact that no fawn shirt was included in the items seized during the execution of the search warrant at the accused’s premises on 18 January 1989 is relevant to either the accused having a consciousness of guilt or as evidence which supports the inference that the accused disposed of the shirt.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 4 October 2018 |
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