The State of Western Australia v Edwards [No 5]
[2019] WASC 419
•15 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [No 5] [2019] WASC 419
CORAM: HALL J
HEARD: 21 & 22 OCTOBER 2019
DELIVERED : 15 NOVEMBER 2019
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law - Evidence - Whether evidence is relevant - Rulings made
Legislation:
Evidence Act 1906 (WA) s 79C
Result:
Rulings made
Category: B
Representation:
Counsel:
| Prosecution | : | Ms C Barbagallo SC, Ms T Payne & Mr B Hollingsworth |
| Accused | : | Mr P Yovich SC & Ms G Cleary |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Mony De Kerloy |
Case(s) referred to in decision(s):
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HCP v The State of Western Australia [2019] WASCA 38
The State of Western Australia v Edwards [No 2] [2019] WASC 282
HALL J:
At a directions hearing held on 21 and 22 October 2019 three issues relating to the evidence were dealt with. First, there were applications on behalf of the State for leave to adduce evidence that had been disclosed after 30 July 2019. Second, there were objections to evidence that was said to be admissible as being relevant to the accused's state of mind (the so‑called 'emotional upset evidence'). Third, there were remaining objections to a number of other parts of the evidence, generally on the grounds of relevance. The first two matters are dealt with in other rulings. This ruling relates to the third group of objections.
At the commencement of the directions hearing the accused pleaded guilty to the first five counts on the indictment, however, an agreed statement of facts in relation to those counts had not yet been formulated. Some of the evidence that is the subject of this ruling relates to the first five counts. That evidence may continue to be relevant, in particular insofar as it is admissible propensity evidence. However, the necessity to adduce that evidence may fall away if facts relating to the first five counts are admitted. As that was, at the time this ruling was prepared, unclear, I have dealt with all of the objections.
Relevant legal principles
Most of the objections to be dealt with in these reasons are based on the issue of relevance. I summarised the law of evidence in respect of relevance in a previous ruling in this matter.[1] For ease of reference, I will repeat that summary here.
[1] The State of Western Australia v Edwards [No 2] [2019] WASC 282 [4].
Evidence is relevant if it makes more probable a fact in issue or a fact relevant to a fact in issue. The essential components of the law in respect of relevance were referred to by Gleeson CJ in Goldsmith v Sandilands.[2] The principles were recently summarised by Buss P in HCP v The State of Western Australia:[3]
[2] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024.
[3] HCP v The State of Western Australia [2019] WASCA 38 [45] ‑ [46].
In Goldsmith v Sandilands [[2002] HCA 31; (2002) 76 ALJR 1024 [2]], Gleeson CJ made the following observations in relation to the concept of relevance and the admissibility of evidence:
(a)The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues at the trial.
(b)Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial.
(c)The general rule that relevant evidence will be received is qualified by other rules.
(d)One such qualification limits investigation of collateral matters.
The question as to the relevance of evidence, in a criminal trial before a judge and jury, is whether the evidence, if accepted, could rationally affect the jury's assessment of the probability of the existence of a fact in issue. See Smith v The Queen [[2001] HCA 50; (2001) 206 CLR 650 [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ)]. Evidence may have that effect directly or indirectly. See Roach v The Queen [[2011] HCA 12; (2011) 242 CLR 610 [12] (French CJ, Hayne, Crennan & Kiefel JJ)]. Evidence may be relevant if it assists in the evaluation of other evidence. See HML v The Queen [[2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ)]. Evidence is either relevant or it is not. No question of discretion is involved. A decision as to whether evidence is relevant is based on logic and general experience. See BBH v The Queen [[2012] HCA 9; (2012) 245 CLR 499 [51] (French CJ)]. If evidence is not relevant, no further issue arises as to admissibility. Irrelevant evidence will not be received. See Smith [6]. The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant. See Papakosmas v The Queen [[1999] HCA 37; (1999) 196 CLR 297 [21] (Gleeson CJ & Hayne J)]; Roach [14].
Objections
There are nine areas of objection. Eight of those areas are in respect of the statements of various prosecution witnesses or parts of those statements. The final area relates to a part of the record of interview between the accused and the police. I will deal with each of the first eight areas by reference to the name of the witness concerned. In respect of a number of the witnesses there are suppression orders as to their identification and they will be referred to in these reasons by initials.
CH
CH met the accused a number of times in the mid‑1990s because a good friend of hers was going out with the accused's brother. She went out to restaurants with the accused on a number of occasions. She attended a proofing conference with the Office of the Director of Public Prosecutions (ODPP) on 31 July 2019 and has provided an additional statement arising from that conference, which is dated the same day. The objection is to par 5 of the additional statement. In that paragraph she states that the area between her parents' house in Wanneroo and Pipidinny Road in Eglinton was market gardens and bushland in the period 1995 to 1997. She states that at that time it did not take long to travel from her parents' house to Pipidinny Road as there was little traffic on Wanneroo Road and the speed limit was 90 km per hour.
The State says that the relevance of this evidence is that Ms Glennon's body was located in 1997 near Pipidinny Road in Eglinton. It is suggested that the accused having attended at CH's parents' house in Wanneroo in 1995 or 1996, it can be said that he is familiar with the area in which the body was left. The State refers to the fact that CH's parents' house was on Wanneroo Road and that, by driving further on Wanneroo Road, Pipidinny Road can be reached. The State also refers to the fact that the accused, at the relevant time, was living in Huntingdale, approximately 80 km south of Pipidinny Road.
The defence submits that this evidence is irrelevant. It points out that Pipidinny Road is some 20 km north of CH's parents' house in Wanneroo. It submits that going to the Wanneroo house cannot be said to make the accused familiar with a place that is 20 km further north.
The distance between the Wanneroo house and Pipidinny Road is such that no inference could reasonably be drawn that, if the accused visited the Wanneroo house, he was familiar with the area in which the body of Ms Glennon was disposed of. It is not to the point that the area between the Wanneroo house and Pipidinny Road was, at the time, not built up and the speed limit was 90 km per hour. There is no evidence from CH that the accused, to her knowledge, ever drove on that route. The fact that the accused had on occasions in 1995 or 1996 driven to the Wanneroo house does not make it any more or less likely that he is the person who disposed of Ms Glennon's body on an unrelated occasion at a place which is 20 km further north. The evidence is not relevant.
Tracey Jane Chrystal
Ms Chrystal was in a relationship for a short time with the accused's brother in the mid‑1990s. She is a friend of CH. The objections are to pars 31 ‑ 42, 77 ‑ 79 and 83 of Ms Chrystal's original statement and pars 9 ‑ 11 of an additional statement prepared following proofing.
In par 31 Ms Chrystal states that she stayed at the Huntingdale house (owned by the parents of the accused) with the accused's brother on two occasions. At that time the accused was also residing there. In pars 32 ‑ 41 she describes the Huntingdale house and its internal layout. In oral argument, the State said that pars 32 ‑ 41 were no longer relevant given the pleas of guilty to counts 1 to 5. The only relevance of par 31 is said to be to place in time when it was that the accused was living at the Huntingdale house.
The defence submits that this evidence does not assist in determining the time frame in which the accused was residing at the Huntingdale house. Ms Chrystal states that she stayed at the house on two occasions and that the accused was also living there, but she does not provide dates for those occasions. Earlier in her statement she states that she dated the accused's brother for a short time in the mid‑1990s. That does not provide any precise time frame. The defence also notes that an alibi notice has been filed in which the accused has stated that his recollection is that he was living in the Huntingdale house at the time that the offences that are the subject of counts 7 and 8 occurred. There was some discussion at the hearing of the possibility of an admission in this regard.
The evidence as to Ms Chrystal's staying at the Huntingdale house on two occasions as contained in par 31 is incapable of providing any real assistance as to when the accused was living at the house. It is too vague and imprecise and cannot be linked to any other known events. This evidence is not relevant.
In pars 77 ‑ 79 and 83 Ms Chrystal refers to an occasion when the accused came to see her at her parents' house in Neerabup. She states that he drove out to see her in a white station wagon and brought her some flowers or chocolates. She is pretty certain that he gave her a kiss as he was leaving. This appears to have been an attempt by the accused to comfort Ms Chrystal following her breakup with his brother. At an earlier hearing, the State had conceded that pars 77 ‑ 79 were irrelevant,[4] but it sought to revisit that question.
[4] ts 538.
The State says that this evidence is relevant in two respects. First, because it shows the accused is familiar with the area in which Ms Glennon's body was disposed of. Second, it is relevant to the accused's emotional state. It is also suggested that the evidence assists in placing a date when the relationship between Ms Chrystal and the accused's brother ended.
The defence submits that the evidence is not relevant. The Neerabup house is a little closer to Pipidinny Road than the Wanneroo house, but not such that any inference could reasonably be drawn that the accused, having attended the Neerabup house, would be familiar with the area in which the body of Ms Glennon was disposed of. As to emotional upset, there is nothing in Ms Chrystal's statement to suggest that the accused was upset at the time he visited her. As to the timing issue, the defence says that the evidence does not tie back to anything and is therefore too vague to assist with the chronology.
In my view, this evidence is not relevant, other than perhaps to the issue of emotional upset (which is dealt with in the ruling on that issue). The Neerabup house is only marginally closer to Pipidinny Road than the Wanneroo house of CH's parents. There is no suggestion in Ms Chrystal's statement that the accused ever drove further north. The fact that on one occasion he visited Ms Chrystal in Neerabup does not make it any more likely that he was the person who disposed of the body of Ms Glennon in Eglinton. There is no suggestion that the accused was upset at the time of this meeting and nothing about it makes it likely that he would have been upset. If relevant to emotional upset, it can only be because it puts some other evidence on that issue into context. The evidence does not assist with the chronology as Ms Chrystal is unable to connect this event with any other factual circumstance which can be placed accurately in time.
Paragraphs 9 ‑ 11 of the new statement fall into the same category. They merely provide details of the occasions when Ms Chrystal stayed at the Huntingdale house, but not anything which would enable these incidents to be placed any more clearly in time. They are irrelevant for the same reasons as par 31 of the original statement.
David Minchin
Mr Minchin is a former work colleague of the accused. Objection is taken to pars 5 ‑ 7 of Mr Minchin's second statement dated 6 October 2017 (brief pages BRE 1276 ‑ 1277). In these paragraphs Mr Minchin states that at the beginning of his apprenticeship in early 1986 he was issued with a toolbox that contained a green‑handled, folding, lock‑blade pocket knife. The accused was also issued with such a knife. About six to eight weeks later Mr Minchin was required to hand back the green‑handled knife and in exchange was issued with a replacement brown‑handled knife, as was the accused. He states that the brown‑handled knife was imprinted with the Telstra logo.
The State says that the relevance of this evidence is that a knife of a similar type was found near to where Ms Rimmer's body was located. There is no particular relevance to the fact that a green‑handled knife was issued first, other than to provide a detailed account of the process for issuing tools, and in particular knives, to Telstra employees and the order in which they were issued.
The defence submits that the knife found near the Rimmer crime scene is different from either of the knives described by Mr Minchin. In any event, whilst it has been agreed that parts of Mr Minchin's statement can be read (including his references to the brown‑handled knife), the defence questions whether any reference to the green‑handled knife has relevance. There was some suggestion that the parties may reach an agreed position in this regard and that if they did so they would inform the court. Failing that I was to rule on the matter.
In my view, this evidence is relevant, but only to explain the process by which tools, and in particular knives, were issued to employees and the order in which knives came to be issued and who they were issued to.
Murray Cook
Mr Cook is another former work colleague of the accused. Mr Cook and his wife sometimes socialised with the accused at a tavern. This commenced in 1995. The objection is to part of par 11 of Mr Cook's additional statement of 8 July 2019. The part objected to is a reference by Mr Cook to his own love of drinking but preference to drink at home.
The State says that this evidence is to be read in conjunction with evidence from Paul Luff, a friend of the accused, to the effect that the accused spoke about drinking with Murray Cook. The evidence is said to go to the accused's state of mind at the time.
This evidence is not relevant. The defence does not object to evidence from Mr Cook that he and the accused went drinking. It only objects to Mr Cook's expression of his liking to drink and where he prefers to do so. Mr Cook's attitudes in these respects have no relevance to any issue at the trial. They say nothing as to whether the accused was drinking to excess at this time and, if so, why he may have been doing so.
Robert Kinnear
Mr Kinnear is another former work colleague of the accused. He located Telecom and Telstra records that relate, amongst other things, to the uniforms that were issued to employees and the procedures relating to the issuing of such uniforms. Objection is taken to par 38 of Mr Kinnear's statement of 29 July 2019 (brief page TEL 984 - 18). In that paragraph Mr Kinnear refers to a form that relates to protective clothing. He states that whilst he has never used or seen this form as he has not needed to wear protective clothing, the process in relation to ordering protective clothing items would be the same. By this he can be taken to mean the same procedure as applies to other types of employer‑provided clothing, which he describes in his statement.
The State says that Mr Kinnear, as an employee of Telstra for over 40 years and with familiarity of the process of ordering clothing, is qualified to give the evidence. The defence submits that since he has never seen or used this form, anything he says about it is essentially speculation.
It is apparent from reading Mr Kinnear's statement that he has been requested to produce a number of documents from the records of Telstra. This is one of those documents. It is likely to be admissible as a business record under s 79C of the Evidence Act 1906 (WA). For that purpose all reasonable inferences can be drawn from the form and content of the document. There is little said by Mr Kinnear in regard to this particular form and the process by which it is completed that is not evident from an examination of it. In any event, whilst Mr Kinnear has never used this particular form, there is no reason to think that the process for completion and submission of this form is any different from others of which he is familiar and which have a similar format. In these circumstances, what Mr Kinnear says about this form is not speculation but a reasonable inference drawn from his familiarity with the processes and procedures regarding forms of this general nature. While the evidence may not have a great deal of weight, it is relevant.
Kenneth Mitchell
Mr Mitchell was residing in Wellard in 1996. During the early hours of Sunday morning 9 June 1996, he was awoken by the sound of a woman yelling. About a month later the body of Jane Rimmer was found in the area. Mr Mitchell attended a proofing conference with the ODPP and has produced a supplementary statement dated 22 September 2019. The objection is to part of par 3 of that statement. In that paragraph he refers to hearing some words yelled by a woman and then states that 'after that it was just stunned silence'. The objection is to the use of the word 'stunned' in this context. The concern of the defence is that this might be viewed as attributing some state of mind to the woman who was yelling.
The State's response to the objection is that the State cannot tell witnesses how they can express themselves. That is as may be, but any view of Mr Mitchell as to whether the woman who was yelling was 'stunned' is clearly inadmissible. He cannot know whether or not the woman was stunned, or why it was the yelling stopped. It may be that this is just a turn of phrase meant to describe the suddenness with which the yelling ceased. If so, that can be properly explored in oral evidence.
Surveillance operatives
The State intends to call a number of covert police operatives who conducted surveillance on the accused prior to his arrest. The State says the only relevance of these witnesses is to explain how it came to pass that the accused was ultimately arrested. This relates to evidence of a discarded drink bottle which was then tested for DNA. Whatever testing was done on that drink bottle was superseded subsequently by tests of buccal swabs taken from the accused after he was arrested. The State says that this evidence would only be required if there was a question as to the legality of the arrest or the 'integrity of the investigation'.[5]
[5] ts 789.
The defence says that there will be no issue as to the legality of the arrest of the accused and queries what the reference to the integrity of the investigation means. The defence says that these witnesses are not able to give evidence about any fact that will be in issue at the trial.
It is apparent from the exchanges of counsel that this evidence will only be required to rebut suggestions that may be made by the defence in cross‑examining other witnesses. In those circumstances, any ruling as to its relevance and admissibility can be deferred.
Kevin Fernandez
The objection in regard to Mr Fernandez related to a passage in his statement of 19 June 2019. The defence indicated that any problem with this evidence might be solved by an addendum statement that Mr Fernandez had produced. The parties undertook to advise the court whether any issue remained.
The accused's record of interview
This objection relates to a passage in the accused's record of interview from pages 160 ‑ 162 of the transcript (brief pages POL 3565 ‑ 3567). The passage commences with the words 'Around the time of this incident' and continues to the words 'I don't know' on the top of page 162 (brief page POL 3567). The passage in question relates to the Huntingdale prowler series of incidents that were part of the evidence relating to counts 1 and 2 on the indictment. In the passage, aspects of the prowler incidents are referred to the accused and he denies involvement. The objection of the defence is that since the prowler incidents were only relevant to counts 1 and 2 and not to the other counts on the indictment, questions relating to those incidents must also fall away in light of the pleas of guilty.
The State says that the accused's denials are relevant to his general credibility. The argument is that the denials are inconsistent with his pleas of guilty to counts 1 and 2 and this reflects upon his credibility more generally. The implication is that this would make it more likely that his denials to other allegations were also untrue.
There are a number of problems with the State's contentions. First, the pleas of guilty to counts 1 and 2 do not necessarily incorporate an admission of culpability in relation to the prowler incidents. Counts 1 and 2 do not relate to the prowler incidents more generally, but to one specific incident. It is not known at this stage whether the accused will admit responsibility for the more general prowling allegations. In these circumstances, it cannot be said with any degree of certainty that these denials in the interview can necessarily be proven to be false.
In any event, the relevance of this evidence is reduced to vanishing point given that in other parts of the interview (which are not challenged) the accused has specifically denied the incident which is the subject of counts 1 and 2 (as well as the incident that is the subject of counts 3 ‑ 5). Those denials are indisputably contradicted by his pleas of guilty. In the circumstances, the significance of this particular passage is questionable. Further, I am not able to accept that a line of reasoning would be available that proven lies in respect of the Huntingdale prowler incidents can make any meaningful contribution to an assessment of the credibility of the accused in regard to other matters. Even if relevant, the relevance of this evidence is so limited that its prejudicial effect outweighs any probative value and I would exclude it in the exercise of my discretion to ensure a fair trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall15 NOVEMBER 2019
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