R v Dunstall

Defence case

1. In order to assess the probative value of the tendered tendency evidence, I felt it important, if possible, to appreciate broadly the issues in dispute in the trial.
2. The defence case was explained by senior counsel to be generally encapsulated in a recorded interview with police in which the accused engaged on 12 May 2015, and the transcript of which was tendered on the voir dire.
3. In a nutshell, the position of the accused for the purposes of the question of admissibility was that there had indeed been talk between Mr Archer, Mr Brixton and himself about the supply of a large quantity of cannabis from Canberra. But that was all sincere on his part, not a ruse, and also a real effort to help out Mr Archer, who had told the accused that he was in financial difficulties.
4. The role of the accused was merely that of facilitator or introducer, not paid agent, and he had received no upfront fees from Mr Archer or Mr Brixton.
5. He had indeed provided Mr Brixton with at least one photograph of cannabis obtained from the internet, but that had an innocent alternative explanation that was nothing to do with the accused seeking falsely to bolster a false story.
6. Although the accused had met the deceased on the evening of 9 June 2014 at a location on the Hume Highway south of Sydney, the accused had not travelled to Canberra or anywhere else with him thereafter.
7. When they had parted company the deceased was alive and well. The accused had nothing to do with his murder, and was never present at the lookout on the evening in question.

Tendency notice

1. The salient parts of the tendency notice upon which the Crown moved were as follows: "…. 1. The person whose "tendency" is the subject of the evidence sought to be adduced is Glenn Dunstall. 2. The tendency sought to be proved is his/her tendency to act in a particular way, or to have a particular state of mind, namely: To fraudulently represent certain property or goods as being available for sale by him as an agent, when such property or goods are not in fact available for sale by him as an agent, or do not exist; and To support the fraudulent sale of property or goods by means of identifying photographs of the said goods or property, and to make assertions that the property or goods are being prepared for sale; and To request payment/part payment for that property or those goods to the detriment of the purchasing party who believes there to be a legitimate sale … 6. In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: Whether the accused Glenn Dunstall was engaged in the sale of Cannabis to Witness 'A' and Witness 'B' in circumstances where he deliberately mislead [sic] Witness 'A' and Witness 'B' into believing that such Cannabis existed, and the sale could be arranged by Glenn Dunstall. That the sale of cannabis could not be made by Glenn Dunstall because the cannabis did not exist. The Crown relies upon the discovery of this lie by the deceased as a motive for the offence of murder.

Tendency evidence

1. The following summary takes the Crown case at its highest, unless otherwise stated by me, and is principally based on two statements of facts tendered on the voir dire.
2. The first "tendency allegation" related to the interactions between the accused and Mr Saul Duck between December 2012 and April 2013.
3. In a nutshell, the accused told Mr Duck that a friend of the accused had a truck available for sale that Mr Duck may care to purchase. The accused said to Mr Duck that he could "do it" for him.
4. Later, the accused sent a number of photographs of the vehicle in question to Mr Duck by way of mobile phone, and suggested that those were photographs of the truck that was available for Mr Duck to purchase through the accused.
5. At one stage, Mr Duck attended a truck yard in Wagga Wagga, and the accused showed him a large white prime mover, which appeared to Mr Duck to be the same as the one depicted in the photographs that had previously been sent to him. The accused provided Mr Duck with a key to the prime mover, and Mr Duck test drove it around the yard.
6. Subsequently, on many occasions, Mr Duck transferred significant sums to the accused. On the understanding of Mr Duck, those payments pertained not only to purchase of the vehicle from the third party, but also to the cost of various improvements and modifications that Mr Duck understood were being made to the prime mover. The final payment made was $10,000 in cash on 24 April 2013.
7. During the period in which Mr Duck was making payments for the truck that had not come into his possession, the accused provided various false documents to Mr Duck in order to allay any concerns on his part. He also transmitted further photos said to show the progress of repairs to the vehicle.
8. Ultimately, Mr Duck transferred over $105,000 to the accused. He succeeded in recovering $27,500 of that amount through contact with the family of the accused.
9. No prime mover ever came into the possession of Mr Duck.
10. The second "tendency allegation" pertains to interactions between the accused and a Mr Fadel. By the time of their interactions, the telephone of the accused was being intercepted by police, and the product of those intercepts is a significant part of the evidence in support of this tendency allegation.
11. In October 2014 in intercepted telephone conversations, the accused offered to negotiate the sale of a truck trailer to Mr Fadel, for the sum of $80,000, on behalf of a friend of the accused.
12. During the course of negotiations, the accused transmitted a number of photographs that purported to show the trailer that was purported to be for sale. In fact, these photographs were downloaded by the accused from the internet (in recounting that proposition, I note that it is contained in the relevant statement of facts, but there is no direct evidence to support it, and I infer that it is itself alleged as a matter of inference).
13. On 7 October 2014, the accused telephoned Mr Fadel and identified himself as "Robert". In that guise, the accused spoke of a brother-in-law who had died and whose vehicles were for sale. Mr Fadel told the accused that he would buy a 2010 model truck trailer. The accused requested a $30,000 deposit for that vehicle.
14. The following day, the accused telephoned Mr Fadel, again adopting the persona of Robert. In that role, he spoke of himself authorising another person, bearing the real name of the accused, as the agent of Robert for the sale of the truck trailer.
15. Later on the same day, because Mr Fadel was undergoing a serious medical procedure, an accountant acting on his behalf telephoned the accused. The accused, in the role of purported agent of the fictitious person Robert, instructed the accountant of Mr Fadel to transfer the sum of $30,000 into a particular bank account. (As it happened, that was the bank account of Mr Duck, but nothing turns on that connection between the two tendency allegations for the purposes of this question of admissibility.)
16. Once Mr Fadel was in hospital, the accountant delayed arranging any payment for the purported truck trailer, because of his suspicions of the accused. No payments were ever made.
17. No truck trailer ever passed into the possession of Mr Fadel either from or through the accused.

Submissions against admissibility of defence counsel

1. I now summarise the most significant points made by senior counsel for the accused in support of the proposition that the evidence in support of both the Duck allegation and the Fadel allegation was inadmissible.
2. No formal objection was taken to the tendency notice, nor was it said that it had not been provided to the defence legal team in good time.

Written submissions

1. In written submissions, it was said first that the tendency allegations can in no sense directly prove the indictment count of murder.
2. Secondly, it was said that there is an obvious conceptual gap between proof of frauds and proof of murder. The point was made that there is no suggestion of violence attending the Fadel allegation, and only limited evidence of a physical confrontation attending the Duck allegation.
3. Thirdly, bearing in mind that lack of direct connection between the tendency allegations and the indictment count, the former will inevitably have a profound prejudicial effect. In particular, it was said that the jury will inevitably infer that the accused is a person of bad character.
4. Fourthly, as for the cannabis allegation, the point was made that there is no conclusive (or even affirmative) evidence that, in truth, the cannabis in Canberra did not exist. I understood the submission to be that, in light of the paucity or absence of evidence directly relevant to the reality or otherwise of the cannabis allegation, the admission of the tendency allegations would inevitably lead to "bootstrapping". And in light of the importance of the unreality of the cannabis deal to the Crown case for motive, the same analysis applies to the question of proof of motive.
5. Fifthly, turning to the tendency allegations themselves, there are significant points of distinction, as follows. Mr Duck saw and drove a prime mover that indeed existed, and indeed at one stage was in the custody of the accused, in that he possessed a key to it. The photographs with which Mr Duck was supplied appeared to him to be similar to the truck that he drove; in other words, there is nothing to suggest that the photographs within that tendency allegation were misleading or falsely sourced. There is no affirmative evidence that there was not a truck available to the accused to be sold to Mr Duck.
6. In similar vein, it was said that there was no affirmative evidence that, in truth, the accused was not in a position to provide a trailer or a truck to Mr Fadel. Furthermore, the evidence about the provision of photographs to Mr Fadel was unclear, and did not demonstrate that the photographs were misleading or falsely sourced. Indeed, no photographs sent by the accused to Mr Fadel have ever been located and produced by police.
7. Sixthly, it was said that requesting prepayment for an item that was to be sold later hardly constituted some sort of striking or even noteworthy pattern, in that requesting a deposit is merely usual and sensible business practice.

Oral submissions of defence counsel

1. The following matters were emphasised in oral submissions.
2. First, whatever label one gives the evidence - tendency, or something else - its prejudicial effect upon the jury remains the same: profound.
3. Secondly, any evidence that would prejudicially suggest that the accused is a discreditable person would constitute a very severe prejudice indeed, especially in the context of a murder trial in which the accused has given the police a lengthy innocent explanation in his recorded interview.
4. A number of cases, including those that predate the Evidence Act 1995 (NSW), were relied upon for the proposition that tendency evidence carries with it a clear danger of prejudicial misuse.
5. Thirdly, the separateness and the height of the "hurdle" to be found in s 101 of the Evidence Act, quite apart from the hurdle in s 97 of the same Act, was emphasised.
6. Fourthly, the asserted weaknesses in the evidence in support of the falsity of the cannabis allegation, and the evidence in support of motive that depends upon that proposition, was emphasised in the context of the assessment of probative value of the tendency evidence. The point was made that there is little, if any, other evidence of any motive for the accused to murder the deceased. Again, I understood the point being made was that there is a significant danger of bootstrapping in this case if the tendency evidence were admitted.
7. Fifthly, the fact that the Crown case is that no cannabis ever came into the possession of Mr Archer or Mr Brixton is of little moment; after all, one is talking of a significant criminal enterprise in which countless things could have gone wrong.
8. In similar vein, the fact that the Crown case features a photograph of a very large amount of cannabis, undisputedly sourced from the internet, means little: one would hardly expect persons growing large quantities of cannabis freely to distribute accurate photos of their crops.
9. Sixthly, the points made in the written submissions about the absence of evidence that there was not a crop of cannabis in Canberra, and not a truck able to be sold to Mr Fadel, were emphasised, as was the point that there was indeed a truck that Mr Duck was able to inspect and even drive.
10. Seventhly, the points about the danger of intellectual bootstrapping; the generic nature of requesting prepayment with regard to provision of any valuable item; and the inability of the Crown to produce any photographs actually sent to Mr Fadel were also emphasised orally. So was the proposition that it seems that Mr Fadel actually requested any photographs that he received.
11. In summary: the submission of defence counsel was that the probative value of the tendency evidence, when analysed in the context of the Crown case, was low, and the risk of prejudice was high, with the result that the statutory test for admission had not been made out by the Crown.

General approach

1. In my respectful opinion, the starting point - and to a large degree the ending point - of considering the admissibility of asserted tendency evidence tendered by the prosecution in a criminal trial is to be found in ss 55, 97, and 101 of the Evidence Act, along with the definition of probative value to be found in the Dictionary of that Act.
2. Those provisions are so familiar (and so readily available) to any person who may be interested in this question of admissibility that I shall not trouble to extract them verbatim in this judgment.
3. Of the many judicial elucidations of the combined statutory test that have been promulgated in the past 23 years, I have placed most weight upon the analysis of the High Court of Australia in IMM v The Queen [2016] HCA 14, (2016) 257 CLR 300, and in the very recent decision of The Queen v Bauer (a pseudonym) [2018] HCA 40.

Relevance?

1. The essential starting point of any question of disputed admissibility is determining whether the tendered evidence is relevant.
2. In my opinion, the evidence of the Duck allegation and the Fadel allegation is undoubtedly relevant to the facts in issue in the trial, as that concept is defined in s 55 of the Evidence Act. That is because they could rationally affect, at the least indirectly, the assessment by the jury of the probability of whether or not the purported cannabis deal was "real" or not.
3. In the same way, they could inform the assessment of whether or not the accused had indeed said and done the disputed things that the Crown alleged he had said and done about the purported large quantity of cannabis.
4. I did not understand defence counsel to argue to the contrary with regard to the above conclusion about relevance.

Significant probative value?

1. Contrary to the submission of defence counsel, I took the view that both allegations possessed significant probative value for the purposes of s 97 of the Evidence Act. I say that for the following reasons.
2. First, I accepted broadly that the Duck allegation and the Fadel allegation were probative - in the sense of rationally affecting the assessment of the probability of the existence of the fact in issue - as to whether or not the cannabis deal was real or unreal, for the purposes of the definition to be found in the Dictionary of the Evidence Act.
3. Secondly, I accepted the proposition of the Crown that the true nature of the cannabis deal - that is, real in the sense of cannabis actually being available in Canberra, or unreal in the sense of the words and actions of the accused constituting an elaborate "rip-off" - was a central part of the Crown case, and indeed a very important aspect of proof or lack of proof of guilt of the accused of the count of murder.
4. Thirdly, the fact that supplying (as broadly defined, and including offering to supply) cannabis, or obtaining a benefit by deception, was not the count on the indictment was, in my opinion, not of great moment. That is because, on the Crown case, the circumstances of the cannabis deal are inextricably linked with the allegation of murder, not least by way of date, time, place, and motive.
5. Furthermore, it is uncontroversial that, in order to possess significant probative value, tendency evidence need not prove the indictment allegation directly. Nor, of course, must the tendency evidence be of the same nature as the count on the indictment; such hard and fast rules do not apply to circumstantial evidence, whether it be asserted evidence of a tendency or otherwise (see Adams v R [2017] NSWCCA 215).
6. Fourthly, the fact that, quite apart from whether it was real or not, other important aspects of the cannabis deal were firmly disputed (I refer to whether upfront fees were provided or not, and whether the accused provided photographs sourced from the internet with intent to mislead Mr Brixton) meant that resolution of those subsidiary questions was important as well, and assisted by inference by the tendency evidence.
7. Fifthly, it is certainly true that there were some differences between the cannabis allegation, the Duck allegation, and the Fadel allegation.
8. A number of examples can be brought to mind: the cannabis was contraband, whereas trucks and trailers are not. The evidence about the provision of photographs to Mr Fadel was not as direct as it was in the case of the cannabis allegation and the Duck allegation. In the case of the Fadel allegation, the Crown case is that the accused presented himself as both intervening agent and also ultimate vendor. In the case of the Duck allegation, on the Crown case at its highest there actually was a prime mover, the key of which at one stage was available to the accused. In the Duck allegation, the photographs are not said to be misleading in themselves. In the case of the Fadel allegation, no money was actually provided by the putative purchaser to the accused.
9. All of that is accepted. Still and all, in my opinion there were some compelling underlying unities between the three, as follows.
10. The dates at or during which they were said to occur (the Duck allegation from December 2012 until April 2013, the cannabis deal in the weeks leading up to 9 June 2014, and the Fadel allegation in October 2014). It cannot be said that the three allegations are significantly temporally separated.
11. The fact that tangible items were to be supplied, not services.
12. The fact that each item was significantly valuable, and worth at the least tens of thousands of dollars.
13. The fact that there was evidence in the Crown case, taken at its highest and able to be rationally accepted by a tribunal of fact, that upfront payments were made in the case of the cannabis deal and the Duck allegation, and unsuccessfully sought with alacrity by the accused in the case of the Fadel allegation.
14. Separately, neither the payments obtained nor sought were paltry amounts.
15. The presentation by the accused of himself as some sort of agent for the ultimate vendor or vendors with regard to each allegation.
16. The provision of photographs to the asserted purchaser on each occasion, and the evidence in the Crown case that, in the case of the cannabis allegation, those photographs had been sourced from the internet. And whilst it is true that the Duck allegation did not assert that the photographs provided were inherently misleading in that way, it certainly did assert that the accused provided many false documents to the putative purchaser. As for the Fadel allegation, I did not determine the question of admissibility on the basis that the photographs provided were sourced from the internet. But they have an important role to play nevertheless, because they supported the proposition that the photographs transmitted within the cannabis allegation pertained to the product said to be for sale, and had not been transmitted for some wholly separate purpose, as the defence case asserts.
17. Finally, and perhaps most importantly, the fact that, in the event, none of the three items represented to be available for sale by the accused was ever actually provided to the putative purchaser or purchasers. It is true that one can posit various reasons, in each context, for that ultimate outcome. Still and all, in my opinion it is a compelling unity between the cannabis allegation, the Duck allegation, and the Fadel allegation. To speak more clearly: the underlying unity of none of the items ever being provided to the prospective purchaser powerfully supports the proposition that the cannabis was not provided to its two purchasers because it did not exist.
18. Sixthly, contrary to the submission of defence counsel, I did not accept that those shared attributes of all three allegations were generic, in the sense of them being merely the kinds of things that the vendor or agent of a vendor would do (providing a photograph of the item for sale) or request (upfront payment). To give but one example, providing misleading documents (whether photos downloaded from the internet, or forged or falsified documents) may not be unheard of, but nor can it be described as generic conduct.
19. In my opinion, and considering the Duck allegation and the Fadel allegation in the context of each other and in the context of the cannabis allegation (in accordance with s 97(1)(b) of the Evidence Act), I considered that they demonstrated a compelling pattern or repeated modus operandi.
20. In short, thinking about each tendency allegation in the context of each other, and in the context of the Crown case with regard to the cannabis deal and the allegation of murder, I considered that the first leg of the test for the admission of tendency evidence tendered by the prosecution in a criminal trial had been made out: the evidence in support of each tendency allegation possesses significant probative value.

Prejudicial effect?

1. Turning to the second leg of the substantive test for the admission of tendency evidence, I accepted the submission of defence counsel that, despite my readiness to give fulsome and repeated directions to the jury about the permitted and prohibited uses of tendency evidence, nevertheless the tendency evidence would have a prejudicial effect upon the accused.
2. I say that not only because the Crown prosecutor conceded orally that that was the case. I say it also because I accepted that a jury of laypersons, no matter how cogent and compelling the legal directions they receive from the trial judge, may nevertheless misuse (at the least unconsciously) tendency evidence as evidence of bad character, and in other prohibited ways.
3. To be weighed against that, it is true, as the Crown prosecutor submitted, that the tendency evidence showed other alleged acts of dishonesty, not violence, in the context of a trial of a count of fatal violence, not dishonesty. In that sense, it could perhaps be said that the tendency evidence was less prejudicial than other hypothetical examples that could readily be brought to mind.
4. Nevertheless, I felt that two entirely separate tendency allegations of dishonesty, quite apart from the dishonesty (and criminality) underpinning the cannabis allegation, and quite apart from the exceptionally grave criminality underpinning the murder allegation, would inevitably have the potential to cause the jury to call into question the credibility of the version of the accused, in addition to his character. And that would be the case whether or not he gave evidence in his case, or merely relied upon his lengthy recorded interview with police.
5. In short, I accepted for the purposes of s 101(2) of the Evidence Act that there may well be prejudice to the accused if the tendency evidence were admitted, that it could have a number of facets, and that it would not be trivial.

Probative value substantially outweighs any prejudicial effect upon accused?

1. As I have written immediately above, I accepted that the tendency evidence would have a prejudicial effect upon the accused, and in more than one way. Nevertheless, I ultimately considered that the probative value of the tendency evidence outweighed any prejudicial effect that it would have upon the accused, and furthermore that it did so substantially. That is so for the following reasons.
2. First, as I have already written, the cannabis allegation, whilst separate in the nature of its criminality from the act of profound violence that constitutes the count on the indictment, was inextricably bound up with it on the Crown case as a matter of fact. That is not only because it provides the motive upon which the Crown relies. It is also because the whole context of the events of the evening of 9 June 2014, including the undisputed fact that the accused and the deceased met in the evening at a spot on the Hume Highway to the south of Sydney, on the Crown case was the deal regarding the cannabis said to be in Canberra. And it is also because, on the Crown case taken at its highest, the deceased was murdered on the very evening when he met the accused, in a reasonably isolated location (a service centre on the Hume Highway in the Southern Highlands at night in the middle of winter), that meeting having occurred pursuant to the cannabis arrangement.
3. Secondly, as I have explained above, it is not only the fundamental nature of the cannabis allegation that is in dispute (by that I mean, its reality or unreality), but also particular facts of it.
4. Thirdly, the isolated allegation that the accused would brazenly pretend to two persons - who were, on the Crown case, serious operators within the drug milieu - that he was able to put them in touch with suppliers of hundreds of thousands of dollars worth of cannabis, when in fact there was none at all available, is very hard indeed to accept, if the allegation is shorn of the tendency evidence. Once one takes into account the context provided by the tendency evidence, however, the cannabis allegation seems less (literally) incredible, and more part of some very audacious, perhaps even compulsive, pattern of behaviour on the part of the accused.
5. Fourthly, the same may be said of the isolated assertion that the accused dared simply to source images from the internet and falsely pretend that they were of the unlawful crop to a perhaps frightening person: not only is that hard to believe, it borders on the bizarre. When seen in the context of something of a continuing pattern of deception by documents, however, that evidence which any tribunal of fact would, in my opinion, be very slow to accept, becomes much more acceptable.
6. Fifthly and finally and in summary, whilst accepting the undoubted potential for prejudice to the accused, I came to the view that both of the tendency allegations played such a compelling role in one's understanding of the cannabis allegation, and in turn the count on the indictment, that their significant probative value substantially outweighed their potential prejudicial effect.
7. For that reason, I was satisfied that the test to be found in ss 97 and 101 of the Evidence Act had been made out with regard to each of them.

Decision

1. It was for the foregoing reasons that I determined that the evidence with regard to both tendency allegations tendered by the Crown was admissible in the trial.

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