R v Lindholm (Ruling No 1)

[2019] VSC 726

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0107

THE QUEEN

v  

ROBYN LINDHOLM

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2019
DATE OF RULING:	7 August 2019
DATE OF REASONS	8 November 2019
CASE MAY BE CITED AS:	R v Lindholm (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 726	First revision: 11 November 2019

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EVIDENCE —Evidence of a previous representation — Whether the evidence relevant for both a hearsay purpose and a credibility purpose under Part 3.1 of the Evidence Act 2008 —Whether the evidence admissible for a hearsay purpose under Part 3.2 of the Evidence Act2008 — Whether the evidence should be excluded under Part 3.11 of the Evidence Act 2008 —If not excluded, whether the use of the evidence of the previous representation should be limited to a credibility purpose under s 136 of the Evidence Act 2008 — Evidence Act 2008 ss 59, 61, 62, 66, 81, 82, 101A, 136, 137, 192.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms C Parkes	Office of Public Prosecutions
For the Accused	Mr J Kelly SC with Mr P Bloemen	Leanne Warren and Associates

HIS HONOUR:

1. These are my reasons for not acceding to an application by Robyn Lindholm to exclude the evidence of John Teazis (John) of a previous representation allegedly made to him by his wife Deborah Teazis (Deborah) on 13 May 2005, which the prosecution relied on for both a hearsay purpose and a credibility purpose.[1]

   [1]See Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 7 August 2019) 255 (lines 17 to 25), where I indicated a provisional view that John’s evidence of Deborah’s previous representation should not be excluded.  The matter was not revisited.  Strictly speaking, no formal ruling was made.

1. These are also my reasons for not acceding to an application by Lindholm, in the alternative, for an order under s 136 of the Evidence Act 2008 limiting the use of John’s evidence of the previous representation by Deborah to a credibility purpose.[2]

   [2]See Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 7 August 2019) where the issue was discussed. The matter was not revisited. Strictly speaking, no formal ruling was made.

1. All references below to sections and parts (e.g., Part 3.1) are to the Evidence Act 2008, unless otherwise indicated.

Background

1. Robyn Lindholm was charged with (and ultimately convicted of)[3] murdering her de facto George Templeton (also known as George Teazis) on or about 3 May 2005.  The prosecution’s case was that she was party to a joint criminal enterprise with her lover Wayne Amey to murder Templeton, whose body has never been found.

   [3]R v Lindholm [2019] VSC 720.

1. The prosecution alleged that Amey, and another unknown male, attended Lindholm and Templeton’s rented home at 13 Tambo Avenue, Reservoir, in the early hours of 3 May 2005, whilst Lindholm was out, and murdered Templeton there and removed the body or, alternatively, assaulted and abducted him there and murdered him elsewhere. 

1. On 4 May 2005, Lindholm made a formal Missing Person’s report to police regarding Templeton. She told police that she and her friend Matilda Burke[4] had gone out for about an hour, late on the night of the 2-3 May 2005, leaving Templeton drunk and half asleep on the lounge room couch and that, when they returned, Templeton had disappeared and his Rodeo ute was gone. Lindholm said that she had received a text from Templeton at about 2:30am saying he was in some kind of trouble and may need a lift and would call later. She heard nothing further from him.

   [4]Pursuant to the proceeding suppression order made by Dixon J on 15 May 2018 under s 17 of the Open Courts Act 2013, the identity of this witness has been anonymised in the published version of this ruling to protect the safety of the witness.

1. Matilda Burke said that when she and Lindholm returned to Tambo Avenue to find Templeton gone, Lindholm told her that “Wayne had paid someone to help him get rid of George”.

1. Not long after Templeton’s disappearance, Lindholm moved in with Wayne Amey and they were a couple for several years thereafter. Amey was murdered in 2013.[5]

   [5]Lindholm pleaded guilty to his murder which was perpetrated by others pursuant to a joint criminal enterprise:  R v Lindholm, Trabert and Ryan [2015] VSC 739.

1. The prosecution relied on, amongst other things, evidence of two previous representations (PR1 and PR2), the first made by Lindholm and the second by Deborah. It is John’s evidence of PR2 which is the subject of these reasons.

Lindholm’s previous representation

1. PR1 was allegedly made by Lindholm to Deborah. Deborah said that on 13 May 2005, in the kitchen at Tambo Avenue, after she said to Lindholm that she half expected to see George walk through the door and say “What the heck are you doing here?”, Lindholm laughed and said “I wouldn’t worry about that, he’s not coming back.”

1. The prosecution relied on PR1 as an admission by Lindholm, submitting that it was open to the jury to infer, having regard to all the evidence, including Burke’s evidence, that Lindholm said “He’s not coming back” because she knew he was dead, and she knew that because she was a party to the alleged joint criminal enterprise with Amey. Since the prosecution relied on PR1 for the truth of the asserted fact, Deborah’s direct evidence of the making of PR1 engaged the exclusionary hearsay rule (s 59), but since PR1 was an admission, it was admissible hearsay pursuant to ss 81 and 82.

Deborah’s previous representation

1. According to Deborah and John, who were both witnesses at the trial, PR2 was made by Deborah to John when she got home on 13 May 2005. She told John that Lindholm had said to her that George “won’t be coming back”.

1. The prosecution relies on the evidence of the making of PR2 as indirect evidence that Lindholm made PR1.

1. As well as disputing that she made PR1, Lindholm disputes that Deborah made PR2.  Neither Deborah nor John mentioned PR1 and PR2 to police until 2016, despite being in contact with police for some time after Templeton’s disappearance. 

Submissions[6]

[6]See Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 7 August 2019) 238 – 256.  See also the Transcript of Proceedings, R v Lindholm (Supreme Court of Victoria, S CR 2017 0107, Beale J, 6 August 2019) 228 – 236, that is, immediately after the discharge of the previous jury. The discussion immediately after the jury’s discharge (but not the following day) proceeded on the assumption that John’s evidence of PR2 was credibility evidence regulated by Part 3.7 of the Evidence Act 2008. John’s evidence was not in fact credibility evidence as defined by s 101A because it was relevant and admissible for a hearsay purpose as well as a credibility purpose.

1. Lindholm submitted that John’s evidence of PR2, if used for the truth of the fact asserted in PR2, was second-hand hearsay evidence of PR1. Lindholm submitted that John’s evidence was excluded by s 62.

1. In the alternative, Lindholm submitted that the probative value of John’s evidence was low and was outweighed by the danger of unfair prejudice. It was submitted that there was a real risk that the jury would overvalue John’s evidence of PR2. 

1. In the event that John’s evidence of PR2 was admissible, Lindholm sought a limiting order under s 136 in respect of the use that the jury could make of PR2, if they accepted that it was made. Lindholm submitted that the jury should only be permitted to use PR2 for a credibility purpose. Otherwise, she would be unfairly prejudiced.

1. As regards the prosecution’s submissions, the prosecution adopted my analysis set out below insofar as it was discussed with the parties on 7 August 2019.

Analysis

Part 3.1

1. How was PR2 relevant?

1. First, PR2 asserted that Lindholm made PR1. Relying on PR2 for the truth of the asserted fact (a hearsay purpose), it rationally increased the probabilities that Lindholm made PR1 which in turn made it more likely that Lindholm was a party to the joint criminal enterprise as explained above at [11]. Second, PR2 rebutted a suggestion of recent invention: in other words, it was also relevant for a credibility purpose.

Part 3.2

1. In relation to the first use, the exclusionary hearsay rule (s 59) was engaged. Section 66, however, provided an exception to that rule. The elements of the s 66 exception are as follows:

·    the evidence is evidence of a previous representation (PR);

·    the evidence is adduced in a criminal proceeding;

·    the representor (R) was competent to give evidence about the asserted fact (AF) at the time of making the PR (s 61);

·    R is available to give evidence about the AF (Dictionary, Part 2, Cl 4(2));

·    R has given or will give evidence in the proceeding (s 66(2));

·    the PR is first hand hearsay (s 62);

·    evidence of the PR is given by R or a witness who perceived the PR being made;

·    R made the PR when the occurrence of the AF was fresh in R’s memory, or R is the complainant and was under 18 at time of the PR; and

·    the PR was not made for the purpose of indicating the evidence that R would be able to give in an Australian or overseas proceeding or the PR concerns the identity of a person, place or thing, or the PR is not adduced by the prosecution (s 66(3)).

1. Applying the elements of s 66 to the evidence that Deborah was expected to give (and gave) of PR2, her evidence was evidence of a PR which the prosecution sought to adduce in criminal proceedings. It was to be presumed she was competent when she made PR2 (s 61(3)) and nothing rebutted that presumption. Deborah, the maker of PR2, was not only available to give evidence about the asserted fact (i.e., the making of PR1 by Lindholm), she was expected to and did give evidence. Her previous representation was first hand hearsay as defined in s 62 because she perceived the asserted fact (i.e., the making of PR1 by Lindholm) and that asserted fact was fresh in her memory when she made PR2: she made PR2 only a few hours after Lindholm made PR1. Deborah did not make PR2 for the purpose of indicating the evidence that she would be able to give in a proceeding.

1. Accordingly, all elements of the s 66 hearsay exception were satisfied in relation to the evidence that Deborah was to give of PR2.

1. Applying the same element of s 66 to John’s evidence of PR2, he was to give evidence of a previous representation in a criminal proceeding. The maker of PR2, Deborah, was presumed competent. Deborah was available to give evidence about the asserted fact and did so. John perceived the making of PR2: Deborah said it to him. Deborah’s PR was first hand hearsay because she perceived the asserted fact (that is, the making of PR1 by Lindholm), which was fresh in her memory when she made PR2. Deborah did not make PR2 for the purpose of indicating the evidence she would be able to give in a proceeding.

1. All elements of the s 66 hearsay exception were satisfied in relation to the evidence that John was to give of the making of PR2 by Deborah.

Part 3.11

1. I turn now to consider whether the evidence of PR2 to be given by Deborah and John entailed a risk of unfair prejudice to the accused which outweighed the probative value of the evidence (s 137).  

1. Assuming that the evidence of Deborah and John would be accepted by the jury, as I am required to do by IMM v The Queen (2016) 257 CLR 300, [2016] HCA 14 at [49] to [54], and taking the evidence at its highest, a jury could find that it provided strong support for the conclusion that Lindholm made PR1, especially as it is unlikely that Deborah would lie to her husband John about such a matter.

1. What was the risk of unfair prejudice? In other words, was there a risk the jury might misuse or overvalue the evidence? The first point to note is that both the maker of PR2 (Deborah) and the witness to PR2 (John) were available to be cross-examined. They could be cross-examined about the delay between the alleged making of PR1 and PR2 and the reporting of PR1 and PR2 to police in 2016.

1. The defence appeared to be concerned by the prospect that a jury could use John’s evidence of PR2 as direct rather than indirect evidence of the making of PR1. If the jury were to do that, they would have fallen foul of the requirement or element of the s 66 hearsay exception that the witness must have perceived the making of the relevant previous representation, which John clearly did not. But I was not persuaded that there was any real risk of the jury misusing or overvaluing John’s evidence in this way. It is self-evident that John was not present for the alleged conversation at Tambo Avenue when Lindholm allegedly made PR1.

1. That brings me to s 136. That section required me to consider not only whether a particular use of the evidence might be unfairly prejudicial to the accused but also whether it might be misleading or confusing.[7] As regards a risk of unfair prejudice, I did not consider there was any such risk, as explained above in my analysis of s 137. Neither was there a risk of the jury being misled or confused. Indeed, it was likely to engender confusion to tell the jury they could not use PR2 for the truth of the asserted fact that Lindholm had made PR1.

   [7]In considering the application to make a limiting order under s 136, I also had regard to the general considerations in s 192.

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