R v Eastman (No 28)

Case [2018] ACTSC 2


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Eastman (No 28)

Citation:

[2018] ACTSC 2

Hearing Dates:

13 November 2017 – 17 November 2017; additional written submissions filed by defence on 27 November 2017; additional written submissions filed by the Crown on 1 December 2017.

DecisionDate:

17 January 2018

Before:

Kellam AJ

Decision:

The accused’s application for a ruling that the admissions made by the accused, which were tape recorded in the course of surveillance of his home, are inadmissible is dismissed.

Catchwords:

CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Admissibility – whether the admission or its making influenced by conduct proscribed by s 84(1) of the Evidence Act 2011 (ACT) – whether police conduct was proscribed conduct pursuant to s 84(1) – whether the conduct influenced the admissions – temporal proximity between proscribed conduct and admissions – consideration of Human Rights Act 2004 (ACT) in interpreting the operation of s 84 of the Evidence Act 2011 (ACT) and determining whether conduct is proscribed

Legislation Cited:

Evidence Act 1995 (Cth) s 84

Evidence Act 1995 (NSW) s 84
Evidence Act 2011 (ACT) ss 84, 90, 137 and 138

Human Rights Act 2004 (ACT) ss 10(1)(b), 12(a), 18(2) and 30

Cases Cited:

Parties:

Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180

Eastman v Director of Public Prosecutions (DPP) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178
Eastman v The Queen (1997) 158 ALR 107
Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR  299
Higgins v R [2007] NSWCCA 56
R v Douglas [2000] NSWCCA 275
R v Eastman (No 9) [2016] ACTSC 69
R v JR [2009] ACTSC 104; 237 FLR 142
R v Helmhout (No 2) [2000] NSWSC 225
R v Sumpton [2014] NSWSC 1432
R v Ul-Haque [2007] NSWSC 1251; 177 A Crim R 348

R v Zhang [2000] NSWSC 1099

The Queen (Crown)

David Harold Eastman (Accused)

Representation:

Counsel

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

Mr G Georgiou, 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:

Objection to the admission of evidence of listening device product

  1. The application presently before me is brought on behalf of the accused seeking an order pursuant to s 84 of the Evidence Act 2011 (ACT) (the Act) that admissions alleged to have been made by the accused and recorded by listening devices installed by Australian Federal Police (AFP) at his home, are inadmissible.

  1. As part of its case against the accused, the prosecution relies upon a number of audio recordings of what the prosecution contends are admissions made by the accused at his home and captured on listening devices, installed in his home, at various times between 1989 and 1992 (the ‘admissions’). In the course of the first trial and after the trial judge…

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AGLC
R v Eastman (No 28) [2018] ACTSC 2
Case
[2018] ACTSC 2
Decision Date

CaseChat Overview and Summary

In the case of R v Eastman (No 28), the defendant sought to exclude statements he had made during police surveillance of his home, arguing that the police conduct leading to those statements was proscribed by s 84(1) of the Evidence Act 2011 (ACT). The matter was before the ACT Supreme Court. The central issue before the court was whether the police conduct amounted to conduct proscribed by s 84(1) of the Evidence Act 2011 (ACT), and if such conduct influenced the admissions made by the defendant. Additionally, the court had to consider the temporal proximity between the proscribed conduct and the admissions, as well as the interpretation of s 84 in light of the Human Rights Act 2004 (ACT).

The court found that the police conduct did not constitute proscribed conduct under s 84(1) of the Evidence Act 2011 (ACT). The judge ruled that the police actions did not involve oppression, coercion, or duress that would influence the defendant’s will. Furthermore, the temporal proximity between the alleged proscribed conduct and the admissions was deemed insufficient to establish a causal link. The court also considered the Human Rights Act 2004 (ACT) in its interpretation of s 84, but found that the statutory provisions did not support the defendant’s argument. Given these findings, the court dismissed the defendant's application to exclude the tape-recorded admissions.

Orders

Orders of the court

The accused’s application for a ruling that the admissions made by the accused, which were tape recorded in the course of surveillance of his home, are inadmissible is 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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