Eastman, David Harold v The Queen - [1997] FCA 548

CATCHWORDS

Criminal Law - Practice and Procedure - appeal against conviction - miscarriage of justice - removal of disruptive accused from Court - right of accused to be present at trial - discretion of trial judge to revoke bail - entitlement of jury to have regard to behaviour of accused throughout trial - direction from trial judge

Bail - Revocation of during trial

Abuse of process - police surveillance of accused - whether surveillance affected capacity of accused to conduct trial

Evidence - Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

Evidence - Whether fresh evidence not available at trial - whether sufficient to justify interference with verdict

Evidence - Whether evidence of good character of accused raised at trial - evidence in reply - appropriate use - discretion of Court - direction to jury

Evidence - Relevance and public interest immunity - accused denied access to prosecution documents - whether likely to be of assistance in answering prosecution case - whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

Evidence - Identification evidence - admissibility - use to which hearsay evidence of non-identification could be put - evidence of voice identification - direction from trial judge - whether adequate - s.60 Evidence Act 1995 (Cth)

Evidence - Disputed confessions - admissibility of tape recordings - s.84 Evidence Act - transcript - discretion to admit - procedure adopted by trial judge in presenting evidence of recorded material to jury

Evidence - Witnesses - cross-examination - need to cross-examine on case on which reliance to be placed - rule in Browne v Dunn - criminal proceedings - parts of defence case not put - application to criminal proceedings - unrepresented accused - consequences of failure to observe rule - inferences to be drawn - appropriate direction

Bail Act 1992 (ACT) s 22
Evidence Act 1995 (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192

Australian Law Reform Commission Report 26, Vol 1
MJ Beazley, Hearsay and Related Evidence - A New Era?
(1995) 18 UNSWLJ 39

Martin v Osborne (1936) 55 CLR 367
Wilson v The Queen (1970) 123 CLR 334
The Queen v Hissey (1973) 6 SASR 280
R v Bond [1906] 2 KB 389
R v Heath [1991] 2 Qd R 182
R v Vernell [1953] VLR 590
R v McHardie and Danielson [1983] 2 NSWLR 733
Attwood v R (1960) 102 CLR 353
Stirland v DPP [1944] AC 315
Hamilton (1993) 68 A Crim R 298
R v Woolcott Forbes (1944) 44 SR(NSW) 333
R v Stalder [1981] 2 NSWLR 9
Crabbe v The Queen (1984) 11 FCR 1
Fuller (1994) 74 A Crim R 415
R v Perrier (No 1) [1991] 1 VR 697
Barca v R (1975) 7 ALR 78
Peacock v R (1911) 13 CLR 619
Alister v The Queen (1984) 154 CLR 404
Jarvie v Magistrates’ Court…

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: [1997] FCA 548
Decision Date: 25 JUNE 1997

CaseChat Overview and Summary

David Harold Eastman has appealed against his conviction for the murder of Colin Stanley Winchester. The Court heard the appeal and rejected all grounds, dismissing the appeal. The appellant was represented by several counsel, who were terminated and re-instructed on multiple occasions. The appellant also conducted himself in a disruptive manner throughout the trial. The appellant was unrepresented for the balance of the trial. The Court considered that the trial judge was entitled to remove the appellant from the courtroom and to provide a video link to allow him to observe proceedings. The Court held that the trial judge had not erred in admitting evidence of gunshot residues, or evidence of the relationship between the appellant and the police force. The Court held that the trial judge had not erred in admitting the enhanced tape recordings and transcripts of the appellant’s voice. The Court held that the trial judge had not erred in excluding the affidavit of Dr Wallace. The Court held that the evidence, when considered as a whole, was sufficient to convict the appellant. The appeal was dismissed.

Orders