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R v Eastman (No 28)

R v Eastman (No 28)

Case [2018] ACTSC 2 17 January 2018

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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

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.

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…

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.

Continue reading R v Eastman (No 28)

Details

AGLC: R v Eastman (No 28) [2018] ACTSC 2
Case: [2018] ACTSC 2
Decision Date: 17 January 2018

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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Citations

AGLC Citation

R v Eastman (No 28) [2018] ACTSC 2

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

R v JF
[2021] NSWDC 287 Para 1

…In R v JF [2009] ACTSC 104; 237 FLR 142 (‘JF’) the voir dire was conducted in circumstances whereby the juvenile accused had admitted commission of a rape in circumstances of violence against him by a relative. The accused did not give evidence on the voir dire, but there was no issue about the admission havin…
R v Sumpton
[2014] NSWSC 1432 Para 1

…e. A reading of the judgment appears to make it clear that there was no argument other than that the admissions were made. In R v Sumpton [2014] NSWSC 1432 (‘Sumpton’) the accused was charged with murder. A voir dire was undertaken at trial during which seven police officers gave evidence, as did the accused. There…
Eastman v Director of Public Prosecutions (No 2)
[2014] ACTSCFC 2 Para 1

…e of comments made by Mr Ninness about ‘keeping on (Mr Eastman’s) back’ as considered in Eastman v Director of Public Prosecutions (DPP) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178. Furthermore it is submitted that there has been considerable development in the jurisprudence relating to s 84 since the judgment of the Full…
Habib v Nationwide News Pty Ltd
[2010] NSWCA 34 Para 1

…In the later case of Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 (‘Habib’) at [239] the above statement of Simpson J in Zhang was cited with approval.…
R v JF
[2009] ACTSC 104 Para 1

…In R v JF [2009] ACTSC 104; 237 FLR 142 (‘JF’) the voir dire was conducted in circumstances whereby the juvenile accused had admitted commission of a rape in circumstances of violence against him by a relative. The accused did not give evidence on the voir dire, but there was no issue about the admission having bee…
Habib v Nationwide News Pty Ltd
[2007] HCATrans 802 Para 1

…In the later case of Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 (‘Habib’) at [239] the above statement of Simpson J in Zhang was cited with approval.…
R v Ul-Haque
[2007] NSWSC 1251 Para 1

…y the accused were admissions. The question was whether or not such admissions were influenced by police impropriety. In R v Ul-Haque [2007] NSWSC 1251; 177 A Crim R 348, the accused had been charged with a terrorism offence. The prosecution sought to rely upon admissions made to AFP officers during three interviews…
Higgins v R
[2007] NSWCCA 56 Para 1

…. Both police and the accused gave evidence on the voir dire. There was no dispute as to the actual admissions that were made. In Higgins v R [2007] NSWCCA 56 (‘Higgins’) a voir dire took place at trial in which the accused gave evidence. A reading of the judgment appears to make it clear that there was no argument…
R v Ye Zhang
[2000] NSWSC 1099 Para 1

…ion having been made. Rather the issue related to whether or not the admission was made in circumstances of violence and oppression. In R v Zhang [2000] NSWSC 1099 (‘Zhang’) where the accused was charged with murder there was no dispute as to the making of the admissions which were largely contained in electronicall…
R v Douglas
[2000] NSWCCA 275 Para 1

…ade the admissions in question. The issue was whether or not the admissions had been influenced by police impropriety. In R v Douglas [2000] NSWCCA 275 a voir dire took place at trial in respect of admissions made by the accused in two electronically recorded interviews at Penrith Police Station whereby the accused…
R v Helmhout (No 2)
[2000] NSWSC 225 Para 1

…was no dispute as to the making of the admissions which were largely contained in electronically recorded interviews. In R v Helmhout (No 2) [2000] NSWSC 225 an application was made to exclude evidence pursuant to s 84 of the Evidence Act 1995 (NSW) following an interview between police and the accused. Both polic…
Butera v Director of Public Prosecutions (Vic)
[1987] HCA 58 Para 1

…ed issues such as whether or not police witnesses can be considered ad hoc expert witnesses (see Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180 at 187-188) and whether or not the jury should be provided with transcript of the recordings. These and other related matters may require determinati…
[2016] ACTSC 69
[2016] ACTSC 69 Para 1

…inness, Ashley AJ concluded that there was no good reason why he should not accept the conclusions of Martin AJ set out above (see R v Eastman (No 9) [2016] ACTSC 69 at 184). Likewise, and in the light of all the material before me, I see no good reason why I should not accept the above cited conclusions of Martin…

Legislation cited in this decision · 3

Evidence Act 2011 (ACT)
137, 138, 84, 90 5 mentions (from Para 1)
Human Rights Act 2004 (ACT)
10(1)(b), 12(a), 18(2), 30 5 mentions (from Para 1)
Evidence Act 1995 (Cth)
84 2 mentions (from Para 1)