R v Eastman (No 26)

[2017] ACTSC 393

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Eastman (No 26)

Citation:

[2017] ACTSC 393

Hearing Date:

27 November 2017

DecisionDate:

20 December 2017

Before:

Kellam AJ

Decision:

The application by the defence for an advance ruling pursuant to s 192 of the Evidence Act 2011 (ACT) is dismissed.

Catchwords:

CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or exclude evidence – application for an advance ruling – admissibility of fingerprint evidence and evidence of the accused using a false name and address.

Legislation Cited:

Evidence Act 2011 (ACT) ss 55, 137, 184, 191 and 192A

Cases Cited:

TKWJ v The Queen [2002] HCA 46; 212 CLR 124

R v TR and VG [2004] ACTSC 10; 180 FLR 424

Parties:

The Queen (Crown)

David Harold Eastman (Accused)

Representation:

Counsel

Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown)

Mr G Georgiou SC, 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:

1. The prosecution seeks to rely on evidence that on 10 February 1988 Geoffrey Bradshaw advertised a .22 calibre rifle for sale in the Canberra Times. The rifle was being sold with a scope. The prosecution case is that the accused attended to inspect the rifle, arriving at Mr Bradshaw’s property on foot, and that Mr Bradshaw recognised the accused from an encounter that they had had some years earlier. The accused was not wearing glasses. He inspected the rifle and gave Mr Bradshaw the impression that he was not experienced in handling firearms. He agreed to purchase the rifle for approximately $90, the sale including the rifle, the scope and some ammunition.

1. Mr Bradshaw requested that the accused sign and write his name and address on the back of Mr Bradshaw’s gun licence so that he would have proof of to whom the firearm was sold. The accused signed the gun licence and provided a false name and address being ‘J F Thomson’ of 124 Atherton Street, Downer. At the relevant time there was no one living at that address with that name and the occupier of the premises at that address had never heard of the accused nor of anyone by the name of ‘J F Thomson’ and had never owned, nor sought to purchase, firearms.

1. Subsequently, a handwriting expert, Mr Westwood, examined the handwriting on the gun licence and confirmed that the handwriting matched that of the accused.

1. Later in the day of the sale, the accused called Mr Bradshaw and told him that the rifle kept jamming. In the meantime, Mr Bradshaw had received a call from a police officer from the gun licencing section. The call alerted him to the fact that he had sold the firearm without sighting a valid licence. Mr Bradshaw told the accused that if he was not happy with the rifle, he could return it. The accused went back to Mr Bradshaw’s house to return the rifle. He told Mr Bradshaw that when he went to practise with the rifle it kept jamming, so he did not want it. He said however that he wanted to keep the scope and it was agreed that it would be sold to him for approximately $20.

1. Following the return of the rifle, Mr Bradshaw placed it in a box and did not handle it again until police obtained it during the course of investigations into the murder of Mr Winchester. In the course of that investigation, police examined the rifle and subsequently identified the accused’s right thumbprint on it.

1. By a s 67 Evidence Act 2011 (ACT) (‘the Act’) Notice dated 17 March 2017, the prosecution seeks to rely upon the evidence of an unavailable witness, Mr Herold, that Mr Eastman’s thumbprint was located on the rifle purchased from Mr Bradshaw.

The application made on behalf of the accused

1. The accused seeks an advance ruling in relation to the admissibility of the fingerprint evidence and the evidence of the use of the false name and address. It is submitted on behalf of the accused that, if he makes an admission to the purchase of the rifle from Mr Bradshaw, such evidence is irrelevant and therefore inadmissible.

1. Section 192A of the Act provides as follows:

192A Advance rulings and findings

Where a question arises in a proceeding, that is a question about –

(a)   the admissibility or use of evidence proposed to be presented; or

(b)   the operation of a provision of this Act or another law in relation to the evidence proposed to be presented; or

(c) the giving of leave, permission or direction under section 192;

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is presented in the proceeding.

1. The accused seeks an advance ruling that if he were to admit the purchase of the Bradshaw rifle on 10 February 1988:

(a)the allegation of the use of a false name or address, and the evidence of Mr Westwood, are irrelevant to a fact in issue and would be inadmissible pursuant to s 55 of the Act. In the alternative, the probative value of that evidence is outweighed by the danger of unfair prejudice to Mr Eastman and that evidence should be excluded pursuant to s 137 of the Act; and

(b)the evidence of the thumbprint would be irrelevant to a fact in issue and therefore inadmissible pursuant to s 55 of the Act.

1. The defence did not address me in detail as to the basis upon which such a ruling in advance should be made, and why, as required by s 192A, I should consider it ‘appropriate to do so’. There are dangers in giving an advance ruling in circumstances where whether or not such a ruling should be made is the subject of dispute, as is presently the case. That is a quite different circumstance to the circumstances of previous rulings given by me in this case where the parties have agreed that the admissibility of certain matters is required to be determined prior to the commencement of the trial.

1. As observed by Gaudron J in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [43]:

Although it may be appropriate in some cases to give an “advance ruling” as to a matter in respect of which the Evidence Act requires leave, permission or direction, it is to be remembered that counsel ultimately bears the responsibility of deciding how the prosecution and defence cases will be run. Thus, it is that “advance rulings”, even if permitted… may give rise to a risk that the trial judge will be seen as other than impartial. Particularly is that so in the case of advance rulings that serve only to enable prosecuting or defence counsel to make tactical decisions.

1. Quite clearly, as observed by Crispin J in R v TR [2004] ACTSC 10; 180 FLR 424, there are cases (of which I consider this is one) in which substantial inconvenience, expense and perhaps unfairness might arise if before the commencement of a trial there were to be no indication as to the likely exercise of judicial discretion as to the admissibility of various matters. I consider that the various rulings I have made to date in this case have been made in consequence of the recognition by the parties of that fact.

1. However, it does appear to me that this present application falls into the category of advance rulings which serve only to assist a party in making a tactical decision. It must be understood that the evidence that the accused bought the rifle in question from Mr Bradshaw is overwhelming. Indeed, although it is not presently admissible in this trial, the accused admitted having done so in the course of giving evidence in the first trial, and admitted having attempted to conceal his identity. He said he did that as he did not have a licence to own a rifle.

1. It is of course open to the accused to make an admission under s 184 of the Act, or to seek to reach an agreement with the prosecution under s 191 of the Act. This he has chosen not to do, but rather seeks an advance ruling which in my view is redolent of the concerns expressed by Gaudron J as to the care to be taken when the advance ruling does no more than enable tactical decisions to be made.

1. Accordingly, I consider that it is not appropriate in the circumstances of this application to exercise my discretion to make the advance ruling sought.

1. The accused’s application for an advance ruling pursuant to s 192 of the Act is dismissed.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.

Associate:

Date: 20 December 2017