R v David Harold Eastman [1995] ACTSC 59 (22 June 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. DAVID HAROLD EASTMAN
No. SCC 111 of 1992
Number of pages - 4
Evidence - criminal law - hearsay - murder

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CARRUTHERS AJ

CATCHWORDS

Evidence - criminal law - hearsay - murder - admissibility of conversation regarding alleged murder weapon - witness deposing as to representations said to have been made by a person to alleged vendor of the weapon and subsequently related to witness - representation that person would return with money to purchase the weapon - admissibility under the Evidence Act 1995 (Cth) - availability of firsthand hearsay exception in s.65 of Division 2 of Part 3.2 of the Act - definition of "previous representation" for the purposes of Division 2 - unavailability of exception in relation to secondhand hearsay.

Evidence - criminal law - hearsay - murder - admissibility of conversation regarding alleged murder weapon - representation that person would return with money to purchase the weapon - admissibility under the Evidence Act 1995 (Cth) - prima facie inadmissible as secondhand hearsay - relevance to state of mind or as evidence of an arrangement - evidence inadmissible for this purpose.

Evidence Act 1995 (Cth), ss. 59, 62, 65, clause 4 of Part 2 of the Dictionary.

Walton v. R [1989] HCA 9; (1988-89) 166 CLR 283.

HEARING

CANBERRA, 8 June 1995
22:6:1995

Counsel for the Prosecution: Mr. Adams, QC with

Mr. J. Ibbotson and
Mr. J. Brewster

Solicitors for the Prosecution: ACT Director of Public
Prosecutions

Counsel for the defendant: Mr. O'Loughlin

Solicitors for the defendant: Messrs Colin Daley Quinn

DECISION

Reasons for Ruling in Relation to Hearsay Evidence (10 August 1995)
CARRUTHERS AJ On 8 June 1995 evidence was taken on the voir dire from Mr. Richard Hall whom the Crown proposed to call in relation (inter alia) to a conversation which he asserts he had with Mr. Klarenbeek (now deceased) on 31 December 1988. The evidence was taken on the voir dire because counsel for the accused foreshadowed an objection to the conversation. After taking the evidence of the subject conversation and hearing argument from Mr. Adams QC for the Crown and Mr. O'Loughlin, counsel for the accused, I reserved judgment in respect of the matter.

2. On 22 June I indicated to the parties that I proposed to uphold the objection by counsel for the accused to the disputed evidence and that I would reduce my reasons to writing. This I now do.

3. It is necessary to consider certain background evidence prior to setting out the disputed conversation. The Crown case is that on Saturday, 31 December 1988, in response to an advertisement by Mr. Klarenbeek in The Canberra Times, the accused visited Mr. Klarenbeek's premises and agreed to purchase the Ruger 10/22 rifle which it is alleged was later used for the purpose of shooting Assistant Commissioner Winchester.

4. Evidence has already been given by Raymond John Webb that he went to Mr. Klarenbeek's premises in response to the advertisement on the morning of 31 December 1988. I infer from this unchallenged evidence that he arrived there before "midday", which I take to be 12 noon. Mr. Webb was informed by Mr. Klarenbeek that the Ruger 10/22 was still for sale, but Mr. Webb was not interested in buying it. Mr. Webb's interest was in purchasing a TOF rifle which was also for sale.

5. Mr. Webb deposed that he returned to Mr. Klarenbeek's premises on Thursday, 5 January 1989 when Mr. Klarenbeek told him that the Ruger had been sold but the person who purchased it did not want the telescopic sight. Mr. Klarenbeek said that if Mr. Webb purchased the TOF rifle he would "throw in" the telescopic sight which had been for sale with the Ruger.

6. Significantly, for present purposes Mr. Webb deposed that when he was leaving the premises on 31 December, he passed a man, whom he later identified as the accused, entering the premises.

7. The Crown case is that at the time Mr. Webb alleged the accused entered Mr. Klarenbeek's premises, the Ruger 10/22 was still for sale and indeed that he purchased it. I have been informed that evidence will be led that on 1 January 1989 the accused withdrew from his bank account the sum of $200 cash, which the Crown will contend was used by the accused to purchase the Ruger.

8. I turn then to the disputed conversation with Mr. Hall. Mr. Hall deposed on the voir dire that he attended Mr. Klarenbeek's premises between 12 noon and 1 p.m. on 31 December 1988 in response to the advertisement. Further, that Mr. Klarenbeek said to him with reference to the Ruger: "A man from Canberra has looked at it and wants to buy it. He said he was going away to get the money and would be back later. If you want to buy it perhaps you could give me a ring later and check if he has come back or not" - "or at least words to that effect". (T.1343)

9. Senior counsel for the Crown explained the way in which the Crown would seek to rely upon this evidence as follows (T.1345):

"I do not wish to elicit the evidence to establish that in fact
the man was from Canberra, in fact that he wanted to buy it or
in fact that he was going away to get the money and would be
back, but rather that he asserted that he was from Canberra and
wished to buy it and that there was an arrangement between him
and Klarenbeek that he was to go away, get the money and return.
Your Honour, it is our submission that evidence of the
arrangement is not hearsay and is admissible as evidence tending
to show that a person, with the other evidence in the case, that
a person did return to purchase it. I rely in particular,
because it is evidence that has already been given, on the
evidence of Mr. Webb."

10. It is convenient to note at this stage the relevant provisions of the Evidence Act 1995, insofar as the subject argument is concerned.

11. Section 59 (contained in Division 1 of Part 3.2) provides:

"The hearsay rule - exclusion of hearsay evidence

59.(1) Evidence of a previous representation made by a person
is not admissible to prove the existence of a fact that the
person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted
fact."

12. Section 62 (contained in Division 2 of Part 3.2) provides:

"Restriction to "first-hand" hearsay

62.(1) A reference in this Division (other than in subsection
(2)) to a previous representation is a reference to a previous
representation that was made by a person who had personal
knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his
or her knowledge of the fact was, or might reasonably be
supposed to have been, based on something that the person saw,
heard or otherwise perceived, other than a previous
representation made by another person about the fact."

13. Section 65 (also contained in Division 2), which is specifically relied upon by the Crown, is (relevantly) in the following terms:

"Exception: criminal proceedings if maker not available

65.(1) This section applies in a criminal proceeding if a
person who made a previous representation is not available to
give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous
representation that is given by a person who saw, heard or
otherwise perceived the representation being made, if the
representation was:
................................................................
(b) made when or shortly after the asserted fact occurred and
in circumstances that make it unlikely that the representation
is a fabrication; or
(c) made in circumstances that make it highly probable that the
representation is reliable; or
..............................................................."

14. As Mr. Klarenbeek is now deceased, he is "not available to give evidence" within the meaning of s.65(1): see Clause 4 of Part 2 of the Dictionary.

15. The threshold problem is, of course, to identify the asserted facts, i.e. the facts which Mr. Klarenbeek intended to assert by his representation. It seems to me that if the disputed conversation is to have any probative value, the asserted facts must be that a man from Canberra wished to purchase the Ruger and that he was going away to get the money and would be back later.

16. Clearly, however, before one could attribute any weight to the assertions that a man who was, in fact, from Canberra wished to buy the Ruger and was going away to get the money and would be back later, it would be necessary to be satisfied that the alleged prior communication from the man to Mr. Klarenbeek in fact occurred and was to some degree an honest one. In this situation, the Crown cannot get the benefit of the exception to the hearsay rule contained in s.65, for the following reasons:

. Section 65(2) provides that the hearsay rule does not apply
to "evidence of a previous representation ..."

. Section 62(1) provides, in effect, that the reference to a
previous representation in s.65(2) is a reference to a previous
representation that was made by a person who had personal
knowledge of the relevant asserted fact. However, by reason of
s.62(2), a person does not have personal knowledge of the
asserted fact if that person's knowledge is based upon "a
previous representation made by another person about the fact".
Here Mr. Klarenbeek's knowledge of the asserted facts was based
entirely upon a previous representation made to him by another
person, i.e. the man who said he was from Canberra.

17. In addition or in the alternative (the Crown case was not clear in this regard), the Crown sought to rely upon Walton v. The Queen [1989] HCA 9; (1988-1989) 166 CLR 283, albeit that case was decided by reference to common law principles. That case dealt with first-hand hearsay and where the state of mind of the deceased (who was clearly identified as the representor) was relevant and therefore representations which she made during her lifetime as to her state of mind were admissible. In the instant case, however, Mr. Klarenbeek's state of mind is of no relevance.

18. As the Crown can rely neither upon s.65 nor upon the relevant common principles as explained in Walton, the evidence sought to be led from Mr. Hall must necessarily be rejected.

19. I should add that if I had concluded that the proposed evidence of Mr. Hall contained some probative value, I would have exercised my discretion to reject the evidence upon the basis that its probative value was outweighed by the danger of unfair prejudice to the accused: see s.137 of the Act.