R v Eastman (No 21) - [2017] ACTSC 255

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 21)
Citation:	[2017] ACTSC 255
Hearing Date:	27 and 28 June 2017
DecisionDate:	7 September 2017
Before:	Kellam AJ
Decision:	See [90]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Admissibility of tendency evidence relied on by prosecution – operation ss 97 & 98 Evidence Act 2011 (ACT) – assessment of whether or not tendencies as pleaded are defective
Legislation Cited:	Evidence Act2011 (ACT) ss 65; 97(1)(a); 98 (1)(a); 101(2); 135; 137 Evidence Act1995 (Cth) Pt 3.6
Cases Cited:	Dao v R [2011] NSWCCA 63; 81 NSWLR 568 DSJ v R [2012] NSWCCA 9; 84 NSWLR 758 Eastman v DPP (No 2) [2014] ACTSCFC 2; 9 ACTLR 178 Elomar v R [2014] NSWCCA 303; 316 ALR 206 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Hughes v The Queen [2017] HCA 20 Ibrahim v Pham [2007] NSWCA 215 IMM v The Queen [2016] HCA 14; 257 CLR 300 Jiminez v The Queen (1992) 173 CLR 572 King v The Queen (1986) 161 CLR 423 Parker v The Queen (1997) 186 CLR 494 R v Amirah Droudis (No 13) [2016] NSWSC 1350 R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 R v Droudis (No 13) [2016] NSWSC 1350 R v Eastman (No 9) [2016] ACTSC 69 R v Jacobson(Ruling No 2) [2014] VSC 368; 243 A Crim R 466 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 R v Taufahema [2007] HCA 11; 228 CLR 232 R v WR [2014] ACTSC 339 RH v R [2014] NSWCCA 71; 241 A Crim R 1 Vojneski v The Queen [2016] ACTCA 57
Parties:	The Queen (Crown) David Harold Eastman (Accused)
Representation:	Counsel Mr M Thangaraj SC with Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou with Ms L Line and Mr M Stanton (Accused)
Solicitors DPP (Crown) ACT Legal Aid Office (Accused)
File Number(s):	SCC 111 of 1992

Kellam AJ:

On 21 August 2015, and pursuant to s 97(1)(a) of the Evidence Act2011 (ACT) (the Act), the prosecution filed and served an amended notice of its intention to adduce evidence of the conduct of the accused to prove that he had a tendency to act in particular ways and to have particular states of mind.
The notice sets out the particulars sought to be proved by the evidence it seeks to adduce as follows:
(a)That the accused had a tendency to have particular states of mind, namely:
(i) To hold ill-will towards persons whom he perceives [sic] to be refusing to accede to his will or demands. (Tendency 1)
(ii) To have a desire to obtain possession of a firearm. (Tendency 2)
(b)That the accused had a tendency to act in particular ways, namely:
(iii) To make threats of, or use, unlawful violence against persons whom…

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 255
Decision Date: 7 September 2017

CaseChat Overview and Summary

In this case, the respondent, a former police officer, faced charges for multiple counts of sexual assault, abuse of office, and misconduct in public office. The evidence presented included allegations from multiple complainants and the prosecution sought to rely on evidence of a tendency to commit sexual offences. The court, presided over by Justice Burns, was tasked with determining the admissibility of this tendency evidence under the provisions of the Evidence Act 2011 (ACT). The respondent argued that the prosecution's tendency evidence was flawed as it was not based on a single course of conduct and did not meet the requirements under sections 97 and 98 of the Act. The court had to consider whether the prosecution's tendency evidence was sufficiently particularised and whether it was relevant to a matter that was of consequence to the determination of the proceedings.

The court carefully examined the statutory provisions and case law to determine whether the prosecution's tendency evidence met the legal criteria. It was held that the tendency evidence was not appropriately identified and particularised, thus failing to meet the requirements of section 97 of the Act. The court found that the prosecution's evidence did not sufficiently outline the conduct or events which formed the basis of the tendency evidence. As a result, the court ruled that the prosecution's tendency evidence was inadmissible, as it did not meet the statutory requirements for admissibility. The court found that the prosecution's failure to properly identify and particularise the tendency evidence meant that it could not be used as a basis for the jury's consideration.

The court's decision effectively precluded the prosecution from relying on the tendency evidence in its case against the respondent. The court's findings on the admissibility of the tendency evidence were pivotal in shaping the direction of the trial. The final orders of the court reflected the ruling on the admissibility of the tendency evidence, with the court ruling that the prosecution's tendency evidence was inadmissible under the Evidence Act 2011 (ACT).

Orders

Orders of the court

See [90]

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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