R v Eastman (No 15) - [2017] ACTSC 143

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 15)
Citation:	[2017] ACTSC 143
Hearing Date:	13 June 2017
DecisionDate:	21 June 2017
Reasons Date:	22 June 2017
Before:	Kellam AJ
Decision:	The Crown’s application to admit the evidence given by the accused at the first trial be dismissed.
Catchwords:	EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE OR EVIDENCE – Admissibility of evidence – admissibility of evidence at retrial given by the accused during first trial – consideration of discretion to exclude admissions and evidence presented by prosecution in criminal proceedings – unfair to the accused to use the evidence in the retrial – ruling not absolute if presented with prior inconsistent statements by the accused – s 90 Evidence Act 2011 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT), s 427(1) Evidence Act 1995 (Cth) Evidence Act 2008 (Vic), s 90 Evidence Act 2011 (ACT), ss 81, 90(b), 135(c), 137, Dictionary Inquiries Act 1991 (ACT)
Cases Cited:	Eastman v Director of Public Prosecutions (DPP) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178 Em v The Queen [2007] HCA 46; 232 CLR 67 R v Hunt and Ollivier (1887) 8 LR (NSW) 38 R v Eastman (No 9) (Unreported, Supreme Court of the Australian Capital Territory, Ashley AJ, 14 April 2016) R v Lang [1965] NSWR 1313 R v McGregor [1968] 1 QB 371 R v Mills [1986] VR 617 R v Sonnet (No 2) [2011] VSC 551; 220 A Crim R 199 R v Taufahema [2007] HCA 11; 228 CLR 232 Stewart v The King (1921) 29 CLR 234 Sonnet v The Queen [2010] VSCA 315; 30 VR 519 Wong Kam-Ming v The Queen [1980] AC 247
Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester: Report of the Board of Inquiry, 31 May 2014
Parties:	The Queen David Harold Eastman
Representation:	Counsel Mr M Thangaraj SC with Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC with Mr M Stanton and Ms L Line (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 111 of 1992

KELLAM AJ:

Admissibility of the evidence of the accused given at the first trial

At the first trial of the accused for the murder of Assistant Commissioner of the Australian Federal Police (AFP), Mr Colin Winchester, the accused gave evidence in his own case for a period of nearly 11 days in September 1995.

The prosecution contends that the whole transcript of the evidence so given by the accused (with some limited exceptions, those being related to evidence of character) is relevant and admissible upon his retrial, and thus seeks to tender the transcript which is in the order of 748 pages in length.

The prosecution has produced to the Court a table said to summarise the accused’s evidence ‘identifying the relevance of each line of questioning and the accused’s representations in response’. The table refers…

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: [2017] ACTSC 143
Decision Date: 21 June 2017

CaseChat Overview and Summary

In the case of R v Eastman, the appellant faced a criminal trial in the Supreme Court of the Australian Capital Territory. The nature of the dispute involved the admissibility of evidence provided by the accused during the initial trial in a subsequent retrial. The Supreme Court was tasked with determining whether such evidence should be admissible under the provisions of the Evidence Act 2011 (ACT).

The primary legal issue before the court was whether the accused's statements made during the first trial could be admitted as evidence in the retrial. The court was required to balance the principles of fairness to the accused, as per section 90 of the Evidence Act 2011 (ACT), against the need to ensure that the judicial process was not unduly prejudiced. The court needed to consider the impact of admitting prior inconsistent statements and whether such admission would be unfair to the accused.

The court deliberated on the application of section 90, which allows for the exclusion of evidence if it would be unfair to the accused to use it in the retrial. The court concluded that admitting the evidence given by the accused during the first trial would be unfair. The court's ruling was not absolute, as it considered the broader context of the case and the potential impact of prior inconsistent statements on the fairness of the retrial. The court found that the admission of such evidence would likely prejudice the accused's right to a fair trial.

The final orders of the court dismissed the Crown's application to admit the evidence given by the accused at the first trial, ensuring that the retrial would proceed without the contested evidence.

Orders

Orders of the court

The Crown’s application to admit the evidence given by the accused at the first trial be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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