R v Eastman (No 25)
[2017] ACTSC 364
•27 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 25) |
Citation: | [2017] ACTSC 364 |
Hearing Date: | 27 November 2017 |
DecisionDate: | 27 November 2017 |
ReasonsDate: | 7 December 2017 |
Before: | Kellam AJ |
Decision: | The evidence that the prosecution proposes to lead from Rosemary Matheson and Gabrielle Paten is admissible. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Relevance – Admissibility – discretion or requirement to exclude evidence in certain circumstances – evidence could rationally affect assessment of existence of fact in issue pursuant to s 55 Evidence Act 2011 (ACT) – probative value of evidence not significantly outweighed thus not excluded pursuant to s 135 Evidence Act 2011 (ACT) – danger of unfair prejudice does not outweigh probative value thus not excluded pursuant to s 137 Evidence Act 2011 (ACT). |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 135 and 137 |
Cases Cited: | Director of Public Prosecutions (DPP) v Paulino [2017] VSCA 38 Evans v The Queen [2007] HCA 59; 235 CLR 521 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 |
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 SC with Mr M Stanton and Ms L Line (Accused) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Accused) | |
File Number: | SCC 111 of 1992 |
KELLAM AJ:
The prosecution has given notice of its intention to call as witnesses two former employees of the Australian Electoral Commission (AEC). The proposed witnesses, Ms Rosemary Matheson and Ms Gabrielle Paten, gave evidence at the first trial of the accused after the trial judge rejected an application made by counsel for the accused that the evidence was not relevant and thus was inadmissible.
Ms Rosemary Matheson
Ms Matheson’s position at the AEC in 1998 required her to maintain the electoral rolls for the Division of Canberra and to deal with members of the public in relation thereto. Ms Paten’s position at that time was as a divisional clerk and her duties included general electoral roll maintenance and handling enquiries from members of the public.
Ms Matheson gave evidence at the trial of the accused that in 1988 the AEC kept what was described as an ‘official roll’ which was a computer print-out of the names and addresses of those persons on the roll. In addition there was a ‘supplementary roll’ (or ‘additions list’) which included those people which came onto the electoral roll after the official roll had been printed. That supplementary roll, together with the official roll, acted as an interim roll until the next printing of the official roll. The information contained in both rolls included a voter’s name and address.
The official roll was available for members of the public to examine and was kept at Ms Matheson’s desk. The supplementary roll was available to members of the public upon request. Assistant Commissioner Winchester completed an AEC enrolment form on 16 February 1988 and his name was entered upon the supplementary roll on 2 March 1988. Ms Matheson gave evidence that she believed the next official roll containing Assistant Commissioner Winchester’s details was dated 21 October 1988 but she was not positive about this.
Ms Matheson made a statement to police on 13 September 1990 to the effect that the accused had attended the AEC office on at least two occasions, between May to December 1988, and that on the last occasion he had asked to see ‘the additions list’ and wanted to know when it would be consolidated with the official list. Subsequently, Ms Matheson saw the accused’s picture on television on a number of occasions after December 1988 and she recognised the person whom she saw on television as being the same person who had attended her office.
Ms Matheson gave evidence that during 1988 the accused came to the AEC and asked to examine the supplementary roll. She gave evidence that that occurred more than once in 1988 and that it had occurred between the end of May and December 1988 and that the accused had specifically ‘asked for the additions’, meaning the supplementary roll.
Upon being cross-examined by counsel for the accused, Ms Matheson stated that at that time there were ‘about 70,000 people’ on the official roll and ‘perhaps a thousand’ on the supplementary roll. She stated that she did not see what the accused was looking at when he asked to inspect the ‘additions’.
Ms Gabrielle Paten
Ms Paten made a statement dated 29 August 1990. She said that during the month of November 1987 she recalled a male person came to the AEC office. She described him as being in his late 30’s or early 40’s, about 175 cm tall, solid build, fair, freckly faced and with collar length ginger coloured hair. She said that the male person asked her if he could see her boss. She then introduced her boss, Bill Shepherd, to the male person and they had a conversation about casual workers being employed at the office. In the course of the conversation Mr Shepherd gave the male person an application for casual employment form which he completed. Ms Paten said she was in the vicinity of the counter and heard what was being said, in particular about the casual office position. She said that during the next 12 months she recalled that this male person, whom she now knows to be the accused, attended the AEC office at least 5 times. She said that when he attended the office he would ask to see the additions list and or the official roll. She said that during the times that she had spoken to the accused she would describe his attitude as ‘aggressive and abrupt’ and on one occasion when he was at the office she overheard the accused speaking to Ms Matheson, and he had ‘snapped’ at her for giving him the wrong list. The last time she saw the accused was late 1988 although she could not remember the date. She said that she had had no further contact with the accused since that time and had only ever seen him on television since then.
Ms Paten made a further statement dated 20 December 1993 to the effect that Assistant Commissioner Winchester’s name and address were included in the official roll dated 21 October 1988 and would have been accessible to members of the public from that time on. She gave evidence that his details were not on the official roll dated 18 February 1988.
10. Ms Paten made a further statement on 23 September 1994 whereby she stated:
During 1988 I was working at the Woden Office of the Electoral Commission. During that period David Harold EASTMAN attended that office on several occasions. I cannot remember exactly, on how many occasion he actually did attend. I recall that these attendances occurred before and after September 1988, as this was the time that a Bill SHEPHERD left our office. On these occasions, David Harold EASTMAN came to the Woden Office to view the Electoral Roll.
11. In the course of a conference with the DPP on 10 August 1994, it is recorded that Ms Paten said she was able to say she saw the accused in late 1988, partly because he had come into the office to ask her questions after one Bill Shepherd had left the office. Mr Shepherd had left the office in September 1988.
12. Ms Paten gave evidence at the trial that between 1987 and 1988 she worked as a divisional clerk at the office of the AEC and that her duties included general electoral roll maintenance and handling inquiries from the public. Likewise she gave evidence that the official roll was available to the public and that the supplementary roll was available to the public upon request. She gave evidence that the accused attended the AEC office between November 1987 and into 1988. She said that he visited approximately five times, although it could have been more or could have been a few less. She gave evidence that the last time she saw the accused was sometime in late 1988 and before December 1988. From time to time when he visited the AEC the accused asked to see the supplementary roll which was held behind the counter.
Defence submissions
13. The defence submits that the evidence of Ms Matheson and Ms Paten does not establish that the accused attended at the Woden AEC office to search for Assistant Commissioner Winchester’s address. First it is submitted that there is no direct evidence that the accused was searching for the details of Mr Winchester. Furthermore it is submitted that the accused, even on the Crown case, had no reason for holding animus towards Mr Winchester prior to his meeting with him on 16 December 1988 and that there is no evidence that the accused attended at the AEC office after the meeting with Assistant Commissioner Winchester. It is conceded by the defence that (as appears clear) Mr Winchester’s details were on the official roll from at least October 1988. The defence points out that there is no contemporaneous record of the accused having attended at the AEC office and that the evidence as to when he actually did attend the office is submitted to be confusing.
14. Thus, it is submitted that the evidence relating to the attendance of the accused at the AEC is inadmissible as it does not meet the threshold of relevance pursuant to s 55 of the Evidence Act 2011 (ACT) (the ‘Act’). It submits that the prosecution’s assertion that the accused was searching for Assistant Commissioner Winchester’s details is a matter of conjecture and speculation and that nothing in the evidence enables the deduction to be drawn reasonably that the accused was conducting such a search. In the alternative it is submitted that the evidence should be excluded pursuant to ss 135 or 137 of the Act because its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.
Prosecution submissions
15. In response the prosecution concedes that there is no direct evidence that the accused attended the AEC office for the purpose of searching for Assistant Commissioner Winchester’s address. The prosecution argues that the evidence is not being led to prove that the accused attended at the AEC office to search for Mr Winchester’s address, but that the evidence is relevant if it is capable of demonstrating that the accused had the means and opportunity to find out where Mr Winchester lived, It is submitted that the evidence led at the first trial established that on 2 March 1988 Mr Winchester’s name and address was added to the supplementary roll and subsequent to the printing of the official roll on 21 October 1988 his name and address appeared on that roll. The evidence is that the accused attended at the AEC office approximately five times between November 1987 and December 1988 and that on occasions he inspected both the official roll and the supplementary roll. The prosecution submits that the relevance of these facts must not be considered in isolation, but must be considered in the context of the prosecution case as a whole and the other evidence to be led. That other evidence includes the fact that by July of 1988 the accused had made attempts to arrange a meeting with Assistant Commissioner Winchester through Senator Reid. On 28 July 1988 the accused wrote a letter to Senator Reid’s secretary acknowledging that the idea of seeking a personal interview with Mr Winchester was a good idea. The prosecution submits that it is therefore clear that by 28 July 1988 the accused wanted to meet personally with Mr Winchester.
16. As to the submission made on behalf of the defence that there was no contemporaneous record of the accused attending the AEC office and that no formal identification procedure was undertaken at the time that the witnesses made their first statements and that the evidence as to when the accused did attend the AEC office is “highly confusing”, the prosecution points out that both Ms Matheson and Ms Paten had good reason to recall the accused. Ms Matheson saw him on several occasions at the office and gave evidence that she recognised the accused as the same person who attended the office during May to December 1988. Ms Paten recalled seeing the accused first in November 1987 at which time he asked to speak to her boss, Bill Shepherd, in relation to obtaining casual employment. She recalled the accused attending the office on further occasions and recalled his demeanour. She recalled on one occasion that the accused “snapped” at Ms Matheson for providing him with the incorrect list. Ms Paten went further in describing the demeanour of the accused during their interactions and recounts in her statement of 23 September 1994 that the accused attended at the AEC office both before and after September 1988, as this was the time Bill Shepherd left the office. The prosecution submits, and I think correctly so, that there is nothing that is confusing about their evidence and although the precise dates of the attendance of the accused at the AEC office cannot be determined the period of time during which he attended is established clearly.
17. As to the submission made on behalf of the accused that the evidence of Ms Matheson and Ms Paton is speculative and should be rejected, the prosecution submits that the submission ignores the fact that the evidence is required to be looked at in the context of the prosecution case as a whole, including evidence that the accused knew of and sought to meet Mr Winchester in July 1988. In this regard it relies upon Shepherd v The Queen [1990] HCA 56; 170 CLR 573 where the leading judgment was given by Dawson J with whom Toohey and Gaudron JJ agreed. Dawson J stated at 579 - 80:
It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. …. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
18. In addition the prosecution relies upon the fact that the prosecution case is a circumstantial case and as stated in the joint judgment in R v Hillier [2007] HCA 13; 228 CLR 618 at [48]:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal …. “in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.
19. In response to the defence submission that there is no evidence of animus between the accused and Mr Winchester at the time that he attended the AEC office and that there is no evidence that the accused attended at the AEC office following the meeting on 16 December 1988 with Mr Winchester, the prosecution does not accept that the accused had no basis or motive to attempt to obtain Mr Winchester’s details in the months before that meeting. It points out that the evidence is clear that the accused had, by July of 1988, made attempts to arrange a meeting with Mr Winchester through Senator Reid. The prosecution refers to evidence that the accused had a conversation with a Mr Alan MacKellar in October 1988 whereby the accused requested Mr MacKellar to obtain the assistance of Mr MacKellar’s brother, who was an acting policeman, to arrange a meeting with Mr Winchester. Mr Winchester was well known to the accused from at least July 1988 and although there is no evidence of animus against him personally prior to the meeting of 16 December 1988, there is ample evidence of animus against police on the part of the accused prior to that date.
Relevance
20. Section 55 of the Act provides:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to –
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to present evidence.
21. The prosecution argue that the fact that the accused attended the AEC office is relevant. The evidence is not being lead to prove that the accused attended at the AEC office to search for Mr Winchester’s address, however it is submitted that the evidence is relevant if it is capable of showing that the accused had the means and capability of finding out where Mr Winchester lived. As observed by Weinberg JA in Director of Public Prosecutions (DPP) v Paulino [2017] VSCA 38 at [16]:
When considering whether any given item of evidence satisfies the test of relevance, the question to be asked, under s 55, is whether, if the evidence were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
22. Furthermore, in footnote [7], Weinberg JA stated:
The words ‘directly or indirectly’ are significant because they allow for evidence to be held relevant even where it does not render a fact in issue more probable, but merely a fact relevant to a fact in issue.
23. It is submitted on this basis that the evidence of the two AEC employees should not be considered in a vacuum, but should be considered in the light of all the evidence.
Conclusion
24. In my view, the evidence satisfies the test in that the evidence is at the least capable of bearing on the capacity of the accused to search electoral rolls to find where people lived and furthermore may counter a prospective submission that might be made by the defence that the accused could not have committed the murder because the accused did not know, or did not have the opportunity to know, where Mr Winchester lived.
25. Likewise I accept the prosecution submission that the defence submission fails to take into account the fact that this is a circumstantial case and that the evidence in dispute must be considered in the light of all the evidence, and in particular, together with other evidence of the accused having an interest in Mr Winchester from at least July 1998. The relevance of evidence does not depend on its capacity by itself to prove anything but rather the assessment of relevance must be made in the context of the other evidence. As Heydon J said in Evans v The Queen [2007] HCA 59; 235 CLR 521 at [177]:
The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.
26. Finally in relation to the defence submission that if the evidence is found to be relevant it should nevertheless be excluded pursuant to ss 135 or 137 of the Act ‘because its probative value is substantially outweighed by the danger that the evidence might be misleading and or confusing or because its probative value is outweighed by its prejudicial effect’. I do not accept that the evidence is confusing or misleading and no submission was made to me as to how the evidence might have an unfair prejudicial
effect. I do not consider that any significant prejudice arises from this evidence. Of course the jury will be directed that they are not to speculate and that the evidence is not evidence that the accused either searched for or obtained particulars of the address of Mr Winchester from the electoral rolls held by the AEC during 1988.
27. Accordingly I rule that the evidence the prosecution proposes to lead from Ms Rosemary Matheson and Ms Gabrielle Paten is admissible.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 7 December 2017 |
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