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

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:

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.

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.

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

Background

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 726
Decision Date: 7 August 2019

CaseChat Overview and Summary

In the case of R v Lindholm (Ruling No 1), the appellant was charged with a serious crime. The prosecution sought to introduce evidence of a previous representation made by the appellant to a third party. The evidence was contested by the appellant on the basis of hearsay and credibility concerns. The case was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the evidence of the previous representation was admissible for both a hearsay purpose and a credibility purpose. The court was also required to consider whether the evidence was admissible for a hearsay purpose under Part 3.2 of the Evidence Act 2008, and whether it should be excluded under Part 3.11 of the Evidence Act 2008. If not excluded, the court needed to determine whether the use of the evidence should be limited to a credibility purpose under section 136 of the Evidence Act 2008.

The court held that the evidence of the previous representation was relevant for both a hearsay purpose and a credibility purpose. The court found that the evidence was admissible for a hearsay purpose under section 66 of the Evidence Act 2008, as it fell within an exception to the hearsay rule. However, the court also held that the evidence should not be excluded under section 137 of the Evidence Act 2008, as it did not pose an unacceptable risk of unfair prejudice to the appellant. Finally, the court held that the use of the evidence should be limited to a credibility purpose under section 136 of the Evidence Act 2008, as it was necessary to assess the reliability of the evidence.

The court ordered that the evidence of the previous representation be admitted for a credibility purpose only, and that any reference to the evidence for a hearsay purpose be excluded from the trial. The court also ordered that any directions given to the jury regarding the use of the evidence be limited to its use for a credibility purpose only.

Orders