R v Eastman (No 28) - [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

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 had rejected submissions made on behalf of the accused that the audio recordings were inadmissible, a number of audio recordings were played to the jury. In addition two sets of transcripts (one prepared by AFP officers and another prepared by a prosecution expert, one Dr French) were placed in evidence before the jury.

I am informed by the prosecution that in addition to the recordings and transcripts admitted into evidence in the first trial, it may seek to rely on a number of additional recordings and transcripts. A final determination regarding these additional matters is yet to be made by the prosecution and awaits further assessment by Dr French.

The defence has yet to be provided with the material referred to in the preceding paragraph and the defence has raised a number of issues in relation to what it contends is the poor quality of the recordings and other associated 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 determination by me in the future.

However the prosecution agrees that I should deal with the present application made by the defence notwithstanding that the defence does not have digitised copies of all of the recordings. It is submitted that there is sufficient information available to enable a determination to be made as to the admissibility of both the material produced at the first trial of the admissions and the so-called additional admissions. It is submitted that the existing transcripts provide an adequate basis upon which to determine the application. As I understand it, although the defence does not accept the accuracy of the transcripts at present before me, the defence nevertheless agrees that I should determine the application upon the basis of that material. In this regard it should be observed that the principal issue raised by the defence relates to the application of s 84 of the Act. Although it is submitted (further or in the alternative) that the admissions should be excluded pursuant to ss 90, 137 or 138 of the Act or pursuant to the common law discretion, it is submitted on behalf of the defence that ‘until there is complete disclosure of the admissions relied upon, the outstanding listening device (‘LD’) material, and the review by Dr French, it is very difficult to assess the probative value of the so-called admissions’. I agree with that submission. Accordingly at this time I intend to deal only with the application made by the defence pursuant to s 84 of the Act.

However before doing so it is appropriate to observe that the manner in which I am asked to deal with this issue is different from the manner in which it has been dealt with in any other matter of which I am aware. The accused gave evidence in the first trial at which statements referred to below and upon which the prosecution relies as admissions were admitted into evidence. In the course of his evidence the accused denied saying the things upon which the prosecution relied or alternatively he gave an alternative explanation as to what the statement meant. As is clear there is no agreement on the part of the defence that such statements were admissions. In effect the defence position is that such admissions were not made, but if they were made then they were influenced by reason of police harassment which was oppressive in nature. Thus it is necessary for me to deal with the issue on the basis that I am to assume the statements in question are admissions. As stated above that is a quite different circumstance from that facing the trial judge in other cases.

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 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 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 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 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 was no argument other than that the accused had made 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 made admissions as to his part in several robberies in the Sydney area. There was no issue as to whether or not the statements made by 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. A voir dire was held at which the accused gave evidence. There was no issue as to the actual admissions that had been made. The issue was as to whether such admissions had been influenced by AFP impropriety.

Accordingly in the circumstances before me I am required to assume that the admissions relied upon by the prosecution are in fact admissions within the meaning of the Act, although if the statements relied upon by the prosecution are found to be admissible there may be further argument as to whether or not they are admissions at all. It is in this somewhat unsatisfactory context that the parties have agreed that I should determine the matter.

Section 84

Section 84 of the Act provides:

84Exclusion of admissions influenced by violence and certain other conduct
(1)Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by-
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or toward someone else; or
(b) a threat of conduct mentioned in paragraph (a).
(2)Subsection (1) only applies if the party against whom evidence of the admission is presented has raised in proceedings an issue about whether the admission or its making were influenced in a way mentioned in subsection (1).

The Dictionary to the Act defines ‘admission’ as:
admission means a previous representation that is –
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding.
At the time of the first trial, s 84 of the Evidence Act 1995 (Cth) applied. Section 84 of that Act is in effect identical to s 84 of the Act. In recent years s 84 of the Act, and the same or similar provision that applies in the relevant legislation in other jurisdictions, has been the subject of judicial consideration on a number of occasions. The principles of its application have therefore been relatively well established. Indeed, the application of s 84 of the Evidence Act 1995 (Cth) was the subject of consideration by the Full Court in Eastman v The Queen (1997) 158 ALR 107 in the context of the issues which are now under consideration. It was a ground of appeal from the first trial of the accused that the trial judge had erred in admitting into evidence the enhanced tape recordings and transcripts of the statements made by the accused and referred to above. An application had been made at trial to exclude the evidence on the basis of s 90(b) of the Act which empowers the Court to exclude an admission on the ground that its admission would be unfair to the accused. In support of the submissions made at that time relating to voluntariness and harassment the accused gave evidence on the voir dire. Although the application before the trial judge was not based upon s 84, the Full Court did give consideration to that section at 199:

On the information placed before the Court on the voir dire the trial judge was not satisfied by the evidence of alleged harassment that the making of the admissions which the Crown alleged were recorded on the tapes was influenced by oppressive conduct. Section 84 of the Evidence Act relevantly provides that evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by violent, oppressive, inhuman or degrading conduct towards the person who made the admission. Although s 84 of the Evidence Act was not referred to by counsel in argument, or by the trial judge when delivering his ruling, it is clear, in our view, that the issue of voluntariness raised by s 84 was the issue which his Honour considered and decided against the appellant. The conclusion of the trial judge has not been shown to be wrong. On the contrary, in our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat.

However it is submitted on behalf of the accused that neither the trial judge nor the Full Court was fully aware of the nature of the evidence of harassment of Mr Eastman, such as the material considered by the Martin Inquiry, and also the non-disclosure 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 Court and thus it is contended that the circumstances now under consideration by me are different from those considered by the Full Court. On the other hand the prosecution argues that much of the evidence of harassment was before the Full Court. However that said it is not contended that I am bound by the determination of the Full Court in this regard.

The legal principles relating to s 84 of the Act:

It is appropriate to observe first that there is little dispute between the parties before me as to the legal principles which apply in relation to s 84 of the Act.

In Zhang at [44] Simpson J said:

…. s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible.

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.

The section has also been the subject of consideration by Refshauge J in JF at [31-32] where he said:

The prosecution bears the onus of showing that the admission was not influenced by the relevant conduct: R v GH (at 431). The standard of proof is, under s 142(1) of the Evidence Act, the balance of probabilities.
The section has not been subject to extensive consideration but it appears that the following are clear:
1) the source of the conduct prohibited by the section is immaterial; it does not have to come from a person in authority or during “official questioning”: R v GH (at 427-8);
2) clearly, the prohibited conduct must be causally connected to the admission: R v Douglas [2000] NSWCCA 275 (at [58]-[61]);
3) the prohibited conduct need not be the only influence on the accused; there may be other reasons why the admission is made: R v Ye Zhang [2000] NSWSC 1099 (at [44]);
4) the test to determine the causal relationship between the conduct and the admission is not a stringent test: R v Ye Zhang (at [44]);
5) inhuman conduct means conduct incompatible with the International Covenant on Civil and Political Rights (opened for signature 19 December 1966, 999 UNTS 171, entered into force 23 March 1976): Truong (1996) 86 A Crim R 188.

In Habib at [241] the Court of Appeal did not accept that, as suggested by Refshauge J, because the effect of s 84 of the Act is “...automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety”. In relation to that dicta the Court of Appeal said:

With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the “admission and [its] making” were “not influenced by” conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving “an expansive meaning to ‘oppression’ in s 84”. [R v Heffernan NSWCCA 16 June 1998 unreported]

In Habib the Court of Appeal (Hodgson JA, Tobias JA and McColl JA) in a joint judgment gave detailed consideration to the history of s 84 at 352-354. In terms of raising the issue as referred to in s 84(2) the court said at [229]:

The concept of a party raising the issue in s 84(2) is juxtaposed with the proposition in the same sub-section that another party is seeking to “adduce” “evidence of the admission” – a strong internal indication that the party seeking to raise the issue may do so without having to establish the fact of conduct actually having influenced the admission. Otherwise the effect of s 84(2) would be to reverse the negative test required by s 84(1) to be satisfied before the relevant admission becomes admissible.

Furthermore, in relation to s 84(2) of the Act, the Court said at [234]:

We would conclude from the language of s 84, the statutory context and legislative history and the common law position when s 84 was enacted that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct … However it is not necessary that that evidence prove as a fact that an admission or its making were so influenced.

In Higgins at [26] Hoeben J held that the concept of ‘oppressive’ in s 84(1) of the Act ‘should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure’.

In Sumpton Hamill J observed at [123] that the ‘concept of "oppressive conduct" should be read ejusdem generis with the other proscribed conduct’ of violence and inhuman or degrading conduct identified in s 84 of the Act. Hamill J said further at [134]:

I have concluded that the accused was subjected to conduct that can properly be described as "oppressive". It involved the exercise of authority and power in a burdensome, harsh and wrongful manner and imposed on the accused unreasonable and unjust burdens.

At [136] Hamill J said in relation to the case before him:

For the evidence to be admissible I must be satisfied that the admission, and the making of the admission, were not influenced by the oppressive conduct that I find took place…

Accordingly, the first step for me to consider is whether there is some evidence that there is a reasonable possibility that an admission or its making was influenced by violent, oppressive, inhuman or degrading conduct on the part of the AFP as is alleged on behalf of the accused. In this regard it should be observed that the accused places considerable reliance on the findings of the Martin Inquiry, to which I will refer in more detail below.

The defence submissions as to s 84(2) of the Act

First it is submitted that upon the material before me there is a clear basis to say that pursuant to s 84(2) of the Act the defence has raised an issue about ‘whether the admission or its making were influenced’ by the proscribed conduct mentioned in s 84(1) of the Act, and that the onus now falls upon the prosecution to satisfy me that the making of the admissions was not influenced by proscribed conduct.

Secondly it is submitted that the matter falls to me to be considered afresh. It is clear, it is submitted, that although in the first trial the issue of the voluntariness of the admissions was raised before the trial judge, no consideration was given by him or by counsel to s 84 (of the Evidence Act 1995 (Cth) which then applied). The reference in the judgment of the Full Court in Eastman v The Queen (1997) 76 FCR 9 at 110 to s 84 was considered briefly in Habib at [222] when the NSW Court of Appeal stated that in their view it is clear that the Full Court ‘was addressing the correct test under s 84(1), the only part of the provision they quoted. Their Honours were not addressing s 84(2)’.

Accordingly it is submitted that the issue was not squarely raised before the trial judge and furthermore that he was not seized of ‘anywhere near the kind of material’ that I am now seized with in consequence of the Report of the Board of Inquiry (the ‘Martin Report”).

Prosecution submissions as to s 84(2) of the Act

First it should be observed that the prosecution accepts that the test is as stated in Habib at [228] and [234]:

that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct.

The prosecution accepts that the accused does not have to prove that the admissions, or their making, were so influenced. Furthermore, the prosecution accepts that once the issue is properly raised, the onus is on the prosecution to satisfy the court on the balance of probabilities that the admissions, or the making of the admissions, were not influenced by the proscribed conduct.

However that said the prosecution submits that the threshold required by s 84(2) of the Act is not reached on the evidence before me because, first, there is no conduct on the part of police of the kind proscribed by s 84(1)(a) of the Act. Whilst the prosecution concedes that ‘on a limited number of occasions the police conduct was wrong’ it is argued that there were few incidents, and such incidents are far removed both from the type of behaviour proscribed by s 84 as well as being temporally remote from the admissions.

Secondly it is submitted that in the present case the accused is unable to establish a sufficient nexus between the conduct of the police and the admissions so as to say that the admissions were possibly ‘influenced’ by the conduct. It is submitted therefore that there is no need for the court to consider s 84(1) of the Act.

The admissions relied on by the prosecution

As stated above the prosecution seeks to rely upon the admissions of the accused which were introduced into evidence at the first trial. That evidence was that the admissions were made on 3 June 1990, 22 June 1990, 23 July 1990, 29 July 1990 and 7 Nov 1991. As stated above the defence does not concede that the evidence of the admissions which was so admitted in the course of the first trial is accurate, but for the purposes of the exercise in which I am currently engaged it is agreed that I should rely upon the consideration of Martin AJ in relation to those and other matters.

At pages 434-434 of the Martin Report his Honour stated as follows:

Statements by the [accused] covertly recorded when he was talking to himself in his residence were capable of being viewed as admissions of guilt of the murder. The quality of the recordings was, at times, particularly poor, but it was open to the jury to accept that the [accused] made statements which the prosecution relied upon as admissions to killing the deceased including the following:
(i)3 June 1990

I had to kill him sitting down.
He was the first man I ever killed, it was a beautiful thing one of the most beautiful feelings you have ever known.
(ii)    22 June 1990
Look I would rather have a man that I’ve killed he’s a wonderful man, a bit of a kiss and then make-up poor bugger I just wanted to get it straightened.
(iii)   23 July 1990
I murdered, I couldn’t get any response.
I couldn’t wait any longer to commit the crime.
I should not have killed.
No-one was sure I killed the cunt. Oh so sorry I killed him. I killed him ...... took it.
I killed him and that’s the truth, I didn’t plan it that way.
I had to kill him, but with deep regret go direct to him, you can’t ... and ummm .... I wanted it straightened..... help........
(iv)    29 July 1990
Had to go back again the next night to kill him the poor bugger.
Finally on the second night you succeeded.
(v)    29 July 1990
Looked like I’d have a name if I killed, I didn’t want to (hit/hurt/hate) anybody I didn’t give a bugger I just wanted to get it straightened.
(vi)    7 November 1991
You killed him.

As pointed out above the prosecution has forecast that there may be other admissions upon which it may seek to rely. However as I understand the matter the parties agree that I should determine the issue raised by s 84 of the Act on the basis of the material referred to above.

The Martin Report

A considerable amount of evidence was led before the Martin Inquiry as to the issue of surveillance and harassment of the accused. At [1666] – [1669] of the Martin Report his Honour observed:

Knowing that the applicant suffered from a Paranoid Personality Disorder, and aware that keeping the murder investigation in the forefront of the applicant’s mind might, in the applicant’s social isolation, push the applicant to a breaking point where he would feel compelled to talk to himself in the confines of his home, Mr Ninness and others played on the applicant’s mental state both in their conduct and in their conversations with him. The harassing and provocative conduct was undertaken with the deliberate intention of provoking the applicant into saying something incriminating which could be recorded on listening devices in his home.
In following this course of action, police relied on the advice of Dr Milton concerning the applicant’s mental state and his need to tell someone or talk to himself about the murder. However, it must be emphasised that Dr Milton did not advocate, and was not aware of, the type of activities that have emerged in the evidence which amounted to harassment and provocation of the applicant.
…. it must be said that there were occasions when police crossed the line and engaged in both unfair and unlawful conduct toward the applicant. For example, verbal harassment of the type described by Mr Ninness when collecting the applicant’s car, sticking a foot in the door of the applicant’s premises and the aggressive confrontation at the city markets were occasions of conduct which forms no part of legitimate investigatory techniques. Similarly, repeatedly surrounding the applicant and invading his personal space on the street is not acceptable conduct on the part of investigating officers. Nor was the conduct of Mr McQuillen during the interview of 26 June 1990. The inappropriate nature of the conduct is exacerbated when regard is had to the applicant’s mental state and the intention of police to play upon and aggravate that mental state.

In support of the above conclusions Martin AJ set out a number of factual findings. It should be observed that physical surveillance of the accused commenced on 13 January 1989 and continued at various times until December 1992. In addition listening devices were installed in the residence of the accused from 26 September 1989 and remained there until 11 January 1993. From an early time in the course of the investigation in January 1989 the AFP obtained advice from psychiatrist, Dr Milton, to the effect that the accused suffered from a paranoid personality disorder and that he was a danger to both particular persons within the community and to the community in general. Dr Milton advised the AFP that despite the accused’s refusal to participate in an interview with police, he nevertheless possessed a great need for self-justification and to explain himself and that it was possible that ‘patience might bring results’ in respect of an interview.

It was Dr Milton’s advice that overt surveillance was appropriate, as was covert surveillance, and that Commander Ninness should keep his ‘face in front of’ the accused so as to be seen as an ‘immovable rock’. However Martin AJ found that Dr Milton was unaware of any police conduct which was intended to provoke or to harass the accused.

Despite the then solicitor for the accused writing, on 19 January 1989, to the AFP advising that the accused did not wish to make any further statements or to take part in any interview with police Mr Ninness gave evidence before Martin AJ that he deliberately ignored that and later requests.

Subsequently and during 1989 Mr Ninness attended at the residence of the accused under the guise of returning items of property on at least three occasions.

On 23 January 1989 Mr Ninness and Detective Sergeant McQuillen engineered face to face contact with the accused by using the return of his car as an excuse to be in his presence. Mr Ninness gave evidence before Martin AJ that he did use the opportunity to try to encourage the accused to participate in an interview. Indeed he gave evidence before Martin AJ that the conversation was cordial and he did not say anything offensive. However a statement made by Mr Ninness and prepared for the purpose of the Inquest reveals otherwise. In the course of the conversation on 23 January 1989 Mr Ninness told the accused that he was the number one suspect and police would be conducting many inquiries into his past. The accused pointed out to Mr Ninness that his solicitors had made it clear that he would not be questioned by Mr Ninness or any police. The response of Mr Ninness to that, was that he was not questioning the accused, but that he was merely informing him as to the course that the investigation was taking.

During that same conversation Mr Ninness said to the accused ‘You frequent brothels David’ and then said that he was surprised that the accused engaged in homosexual activities with boys. The defence relies upon these statements as evidence of demeaning and degrading behaviour on the part of Mr Ninness. When questioned about this before Martin AJ Mr Ninness responded that he was just letting the accused know the ‘homework’ into the accused’s background that police were doing.

On 1 February 1989, Mr Ninness attended upon the accused and spoke to him in the carpark of the flats where the accused lived and advised him as a matter of ‘courtesy’ that he intended to execute a search warrant in respect of the accused’s safety deposit box at the National Bank. The accused had recently appointed a new solicitor, a Mr Pilkinton. The accused told Mr Ninness that Mr Pilkinton said that police were to deal through him before having any contact with the accused. Mr Ninness responded “No, I don’t have to do that, and I won’t be dictated to by any solicitor or you about how I conduct an investigation”.

Five days later on 6 February 1989 Mr Ninness again attended at the property of the accused and asked him if he would take part in a line-up. He also requested the accused to take part in an interview. He said ‘David, you know also this interview we’re talking about, you could save yourself a lot of time and hassles and ah trauma if you’re prepared to take part in the interview you know’. The accused responded by saying ‘well you got my letter from Mr...’ with which Mr Ninness interrupted and said ‘No, no don’t worry about all that bloody stuff, OK, I told you what my system is, I’ve told you where you stand. You’ve got nothing to fear from us at all if you’ve got nothing to do with the murder.’ The defence contends this discussion reveals ‘the pressure is being ramped up’.

On 20 February 1989 Mr Ninness again attended upon the accused to return some property. Mr Ninness told the accused ‘we are getting stronger and stronger on you David’. Some discussion then took place about the property that had been returned, when the accused said ‘they are slightly battered aren’t they? Got a bit of damage in the process?’ Mr Ninness responded to that statement by the accused by saying ‘don’t worry about them, David. There’ll be a lot more things damaged before this is finished, my son.’ In his oral submissions, Junior Counsel Mr Stanton on behalf of the accused described this as a ‘vile threat’.

Mr McQuillen and Mr Ninness attended at the home of the accused on 24 February 1989. It would appear that they were again returning property to the accused. The accused stated that he wanted to sign the receipt for the property on his doorstep, not inside his house. He then told Mr Ninness that he had heard from a friend, a Mr Britton, that he had been badly assaulted at the police station and it was put to Mr Ninness by the accused that he, Mr Ninness, was present at the time. Indeed the accused inquired of Mr Ninness as to whether or not he ‘would have instructed officers to assault him’. Mr Ninness then said:

The one thing we’re having difficulty with, David, is that we’re having a great deal of problems finding someone anywhere that has got anything good to say about you. Right back in your past, the people you worked with, your associates, your contacts, we can’t contact anybody that can actually say something on your behalf. Have you got anybody you can tell us we can go and talk to that would er, support you in any way, shape or form?

The accused then said:

Look I’d just prefer to…

Mr Ninness then continued:

Even down to the fact, even down to the fact of, of the Keep the Peace Order that your parents took out against you for your threats that you were going to kill them at one stage. That concerns me. The other concern I’ve got, David, that your condition, the mental condition you’ve got, you’ve got to deteriorate, more rapidly, because of all this pressure and trauma that you’re under to the stage that you’ll be committed to an institution and we won’t get this matter resolved. And that worries me a great deal. So I hope you are looking after yourself if I’m correct in my assessment of you.

The accused then said:

OK thank you very much.

Subsequently Mr Ninness said:

Because I think you’re going downhill David.

Mr Ninness said further:

If you’ve got anybody that will support you, David, I’d like to, I’d certainly be very keen to talk to them because, nowhere in your lifetime I can find anybody that says, that likes you.

The accused then said that in future he would request that his property be returned to his solicitor, to which Ninness said:

No, we won’t do that, David, we won’t do that. I don’t have to work that way. You want your property if you wish to play that game, you can come to the police station and you can see us there but nothing is going to stop us to come and talk to you or that er we’ll talk to you at the police station but I’m not going to run round to your solicitor’s office returning stuff to you …. As I told you once before David I’ll conduct this investigation on the vein I want to do it, not the way want to dictate it to me.

In relation to the above incident of 24 February 1989 Mr Stanton submits that it is clear that by that date the first report provided by Dr Milton was in the hands of Mr Ninness. In his report of 20 February 1989 Dr Milton stated in relation to the accused that:

…. although he is used to isolation, I believe he currently has a tremendous need to talk to someone, if not about the killing, then certainly about things in general.

On behalf of the accused, Mr Stanton submits that the exchange between Mr Ninness and the accused on 24 February 1989 is not only oppressive but is degrading. This submission is put on the basis that Mr Ninness was armed with the first Dr Milton report whereby he raised the issue of the isolation suffered by the accused and noted particularly that the mental condition that the accused suffered from ‘will deteriorate because of all this pressure and trauma’. Mr Stanton submits that in the context of a person who was known to have a severe paranoid personality disorder that the statements made by Mr Ninness referred to above were oppressive.

On 9 March 1989 the then solicitor for the accused, Mr Pilkinton, again wrote to the AFP advising of instructions received from the accused that ‘under no circumstances’ would the accused agree to an interview. The letter also requested that the police desist from continuing to request that the accused attend for an interview. The letter also stated that in future the accused should be permitted to collect his property from the police station rather than the police attending at his private residence.

Notwithstanding the letter of 9 March 1989 from the accused’s solicitor, on 17 March 1989 and whilst the accused was in the company of a person who was, unbeknown to him, an undercover female police officer, Mr Ninness and Mr McQuillen engineered contact with the accused at the War Memorial. Mr Ninness used the pretext of informing the accused of the intention of police to execute warrants on his trust accounts the following day. The accused made it plain that he did not wish to speak with Mr Ninness, but as on previous occasions Mr Ninness chose to ignore the accused’s requests in that regard.

On 22 March 1989, Mr Ninness and Mr McQuillen deliberately made contact with the accused on Ainslie Avenue. Whilst the accused was sitting in the driver’s seat of his motor vehicle, Mr Ninness removed the keys from the ignition and stood in the open doorway of the car preventing the accused from closing the door. In an aggressive conversation and whilst unlawfully detaining the accused, Mr Ninness told the accused on more than one occasion to ‘shut up’ and that he was ‘the law at the moment’. The accused repeated that he was not obliged to speak with Mr Ninness and told Mr Ninness that his behaviour was ‘technically’ an assault. The response of Mr Ninness was that ‘you know what you can do’.

The tape recording of this conversation was played to me and it is clear that, contrary to Mr Ninness’ evidence before Martin AJ that he spoke in a flat tone, he in fact spoke in a highly aggressive tone.

The next day Mr Pilkinton again wrote to the AFP regarding the events of 22 March 1989 and repeated his previous statement that the accused would not agree to being interviewed under any circumstances. Mr Pilkinton swore an affidavit on 6 February 2014 which was tendered before the Martin Inquiry. The affidavit stated that some days after he sent that letter he received an aggressive and abusive telephone call from Mr Ninness. The defence submits this is objective evidence of the manner in which Mr Ninness was behaving at the time.

A further engineered contact with the accused occurred in the first half of 1989 when Mr Ninness attended at the Olympic Pool where he was aware that the accused swam regularly. In that regard Mr Ninness gave evidence before Martin AJ that he did not speak to the accused, but merely maintained a presence as recommended by Dr Milton.

As stated above listening devices were installed at the premises of the accused on 26 September 1989. The accused became aware of the fact of such installation on or about 15 December 1989 when his then solicitor Mr Donald learnt through an inadvertent remark of an AFP employee that transcripts were being made of things said at the premises of the accused.

A further incident relied upon by the accused is an event that took place in the street near the intersection of West Row and Alinga Street in Civic in Canberra. Mr Ninness approached the accused in the street and said that he had written to his solicitor on 22 September and requested that the accused make himself available to take part in a line-up. Mr Ninness told the accused that he had received no reply. At the conclusion of the conversation Mr Ninness told the accused that if he had not heard from the accused’s solicitor they would be coming back to him again. The accused said ‘well I’d rather you didn’t because I ….’ with which Mr Ninness said ‘I don’t care what you’d rather, I’m telling you what we’ll be doing, OK?’ The accused then said ‘and I’m telling you that I don’t have to speak to you’ with which Mr Ninness said ‘Hey don’t you tell me, I told you once, you won’t be [sic] telling me what to do’.

Mr Ninness executed a further search warrant upon the accused on 7 October 1989 at which time a further request was made to the accused to engage in an interview which he again declined.

Martin AJ referred to the evidence before him that following complaints by the accused that he had received numerous harassing calls, a request was made of Telecom to investigate the source of such calls. Telecom investigations established that the applicant received numerous harassing calls from various localities. Three of those calls were traced to the AFP switchboard. Those calls were made at 8:49 am on 29 January 1990, 11:52 am on 24 February 1990, and 6:20 pm on 3 March 1990. Other calls were made from public phone boxes and thus the identity of the callers could not be established. In giving evidence before Martin AJ Mr Ninness denied that the calls were part of a planned investigation process to maintain contact with the accused.

However Mr McQuillen gave evidence that the AFP calls were made to check whether the accused was in the residence and also to ascertain whether the devices within the residence were working. An occurrence sheet was produced before Martin AJ. Mr McQuillen said that the occurrence sheet was as a record of calls kept for operational reasons. The sheet contained entries of calls, all of which were in the same handwriting and written with the same pen. Martin AJ was satisfied that no record of the calls was made until after the AFP received a letter from Telecom dated 15 March 1990 advising that calls to the accused had been traced to the Canberra police station. That finding appears to me to be well justified based on the evidence before his Honour.

Martin AJ referred to the evidence given before him by Norman Hedland who is a former AFP officer. Mr Hedland was admitted to legal practice in 1985. He said that he had acted for the accused for a period of three or four months in early 1990. He said that the accused had complained to him on several occasions about overt police observation and harassment and that on one occasion when he was interviewing the accused at his office he observed Simon Overland, who was known to him, standing in a carpark across the road and staring at the building and holding an object in his upper chest area. The object may have been a pair of binoculars.

Martin AJ referred in some detail to the reconsideration given by senior officers of the AFP as to the surveillance of the accused during May 1990. He noted that there was a need to reassess the operational tactics put in place by Mr Ninness. This issue was the subject of a minute from the Deputy Commissioner of Operations, Mr Farmer to the officer in charge of the ACT Region on 8 May 1990. The minute referred to the accused having embarked on a campaign of ‘counter attack’. Mr Farmer referred to the tactics of the accused having the purpose of seeking confrontation with the police and ‘mischievously’ creating incidents which were publicised by the media. He concluded that a strategy of monitoring the accused’s movements must be maintained but that it might be time to reconsider the particular surveillance tactics. In May 1990 Detective Commander Whittett was involved in investigating complaints made by the accused about the conduct of police officers. On 9 May 1990 Mr Ninness sent a Minute to Mr Whittett in which he outlined the history of the investigation and evidence implicating the accused in the murder of the deceased. Mr Ninness expressed the belief that the accused posed a ‘potential threat’ to public officials and referred to information obtained from Dr Milton. The concerns held by Mr Ninness were summarised in the following sentence:

I am extremely concerned that Eastman’s medical condition will deteriorate and I believe that there is a strong possibility that he will commit an act of violence or worse which will cause a death of another person.

Mr Ninness referred to the primary objective of the covert surveillance being the location of the murder weapon or other evidence that could link the accused to the murder. In evidence before the Martin Inquiry Mr Ninness said his belief as to the deterioration of the accused’s mental stability was based upon information from the listening post about the way the accused would approach people, together with the accused’s general behaviour.

On 25 May 1990 Mr Ninness circulated a Minute to members of the Major Crime Squad setting out the areas of responsibility for members of the team involved in the investigation and in particular in relation to surveillance. Attached to the minute was a document headed ‘Operational Order’ which provided instructions to members of the investigation team. Reference was made to the accused having adopted a course of action in ‘recent times’ where he is ‘reversing the role [to] being the pursuer of members employed on surveillance duties’. Instruction was given that officers who found themselves being compromised or intimidated should ‘tactfully withdraw from any confrontation’.

In relation to this surveillance in his Report Martin AJ said at [1593]-[1595] as follows:

There can be no doubt that with good cause the AFP generally, and Mr Ninness in particular, regarded the [accused] as a dangerous person. Mr Ninness was aware of the [accused’s] record of violent conduct. He and other officers, including senior officers, believed there was a real danger of the [accused] causing serious harm to members of the public, police officers and persons about whom the applicant might have held feelings of animosity. …. The AFP had good reason for their beliefs and concerns. Both Dr Milton’s opinion and the [accused’s] conduct over a lengthy period provided strong support for those beliefs and concerns. There can be no valid criticism of a decision by Mr Ninness and other members of the AFP to undertake surveillance of the [accused]. Both covert and overt surveillance were amply justified.
It is plain that the [accused] embarked upon a course of conduct designed to undermine the surveillance and that his conduct posed a risk to members of the public. Not infrequently the [accused] mistook members of the public for police officers involved in the surveillance. In his counter measures the [accused] was physically aggressive and posed a significant risk to the well-being of the public. The AFP was faced with a difficult situation and its efforts to maintain covert surveillance were thwarted by the [accused]. If, in such circumstances, covert surveillance became overt, provided the officers involved did not intentionally engage in conduct aimed at harassing and provoking the [accused], they were entitled to maintain overt surveillance.
Although I accept that there was a frustrated attempt at covert surveillance, and the AFP was in a particularly difficult situation because there was a need for surveillance but the [accused’s] counter measures were both successful and dangerous, there is also evidence to support the view that overt surveillance was conducted with the intention of harassing the [accused] and, independently of surveillance, pressure was applied to the [accused] through the tactic of ‘in-your-face’ contact.

And (at [1663]):

Against this background, and in the light of the evidence to which I have referred, I have no doubt that during the period 1989-1991 police conduct was deliberately aimed at harassing the [accused] with a view to upsetting him and provoking him into reacting. In making that observation I do not overlook or underestimate the difficult situation in which investigators found themselves. Police had good reason to be gravely concerned about the welfare of the public and of specific persons in authority. Dr Milton had given the clearest advice that the [accused] was a dangerous person. The [accused] had repeatedly proven that he was capable of physical violence. Both covert and overt surveillance of the [accused] were more than justified on this ground alone. In addition, police properly regarded the [accused] as a suspect, and eventually as the principal suspect, in the murder investigation and both forms of surveillance were justified on the ground that the [accused] might engage in conduct relevant to the investigation.

And (at [1668-1669]):

As to the propriety of the conduct in which the police engaged, care must be taken not to immediately jump to condemnation with the benefit of hindsight. The investigation team was in a difficult position. They had identified a suspect and received advice from Dr Milton about how to handle that suspect. The suspect was a danger to the community and specific persons in authority. Protection of the public and those persons was paramount. Leaving aside statutory and common law requirements for situations such as interviewing suspects, there is no set of ‘The Marquess of Queensberry Rules’ by which investigating officers must abide in carrying out investigations into serious crime. Or, to use the phrase adopted by the Full Court in discussing the [accused’s] appeal against conviction, police were not obliged to observe the ‘social niceties’. Police are entitled to use legitimate methods and, in the particular circumstances involving the [accused] and his capacity to adopt counter-surveillance tactics, police were entitled to engage in overt surveillance and to maintain a visible presence.
Having made those general observations, it must be said that there were occasions when police crossed the line and engaged in both unfair and unlawful conduct toward the [accused]. For example, verbal harassment of the type described by Mr Ninness when collecting the [accused’s] car, sticking a foot in the door of the [accused’s] premises and the aggressive confrontation at the city markets were occasions of conduct which forms no part of legitimate investigatory techniques. Similarly, repeatedly surrounding the [accused] and invading his personal space on the street is not acceptable conduct on the part of investigating officers. Nor was the conduct of Mr McQuillen during the interview of 26 June 1990. The inappropriate nature of the conduct is exacerbated when regard is had to the [accused’s] mental state and the intention of police to play upon and aggravate that mental state.

In the course of his consideration of the application for a permanent stay made on behalf of the accused, after having heard evidence from both Mr McQuillen and Mr Ninness, 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 AJ.

It should be observed that shortly after the reconsideration by Mr Ninness and others of the method of surveillance of the accused, on 3 June 1990 the accused made the first of the recorded statements upon which the prosecution relies as an admission of guilt. On 6 June 1990 Mr McQuillen attended at the accused’s residence on the pretext of advising the accused that he was preparing a report concerning complaints against the accused about telephone calls and possible criminal damage. Once again the accused made it clear that he did not wish to speak to Mr McQuillen. The accused told Mr McQuillen that he had been told before that if Mr McQuillen had anything to say he was to see the accused’s solicitor, Mr Pappas. The accused told Mr McQuillen to ‘clear off’ and ‘not to come to the door again’.

On 7 June 1990 the accused’s solicitor wrote to the AFP reiterating that the accused did not wish to speak to police personally and registering a complaint about the behaviour of Mr McQuillen when he attended at the house of the accused on 6 June 1990. On 11 June 1990 Mr McQuillen attempted to serve the accused with a summons in London Circuit. When the accused refused to accept service, Mr McQuillen threw the papers at his feet.

On 22 June 1990 the second of the recorded statements by the accused talking to himself upon which the prosecution relies as an admission occurred.

On 26 June 1990 while the accused was in custody Mr McQuillen conducted a conversation with him. The conversation is set out in some detail at pages 394, 395 and 396 of the Martin Report. On any view of it, the conduct of Mr McQuillen was harassment of the accused. Nonetheless Martin AJ observed that ‘it must be said that the [accused] did not shy away from responding and baiting Mr McQuillen’. As Dr Brereton agreed in giving evidence before me in relation to this conversation of 26 June 1990, the accused ‘gave as good as he got’.

On 23 July 1990 the third recorded statement upon which the prosecution relies as an admission occurred. A further recorded statement upon which the prosecution relies as an admission was recorded 29 July 1990 and the fifth such statement was recorded on 7 November 1991. It is submitted on behalf of the accused that the examples referred to above by Martin AJ ‘are sufficient to demonstrate that there was a protracted period of violent, oppressive, inhuman or degrading conduct directed towards the accused during the period of the alleged admissions’.

Was the conduct relied upon ‘violent, oppressive, inhumane or degrading’?

Mr Stanton, junior counsel for the defence, contends that the circumstances of this case are highly unusual if not unique. It is submitted that the conduct in this case was nevertheless truly oppressive in that it was a ‘prolonged campaign of harassment directed at the accused’ one purpose of which at least was to make him confess to the murder.

In relation to the interpretation of s 84 of the Act and the consideration of what amounts to ‘violent, oppressive, inhuman or degrading conduct’, the defence relies upon s 30 of the Human Rights Act 2004 (ACT) (‘HRA’) which provides as follows:

30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

It is thus submitted, and I consider correctly so, that the interpretation of s 84 of the Act must be made in a way which is compatible with human rights. The prosecution does not contend otherwise. However the prosecution submits that the ordinary meaning given to s 84 (as well as ss 90, 135, 137 and 138) of the Act is compatible with the protection of human rights.

Whilst I accept the defence submission that when considering the ordinary meaning of ss 84, 90 135, 137 and 138 of the Act I should prefer the interpretation that is consistent with the purpose of those provisions that best protects human rights, it seems to me that there is no inconsistency between those provisions and the HRA. The whole purpose of those sections is to protect the human rights of persons who become subject to the criminal law. In my view, the phrase ‘violent, oppressive, inhuman or degrading conduct’ may well apply in appropriate circumstances to breaches of a person’s right not to be treated in a cruel, inhuman or degrading way (s 10(1)(b) of the HRA), not to be subjected to unlawful or arbitrary breach of privacy (s 12(a) of the HRA), to freedom of movement (s 13 of the HRA) and to liberty (s 18(2) of the HRA). Accordingly, I see no reason to further dwell upon the applicability of the HRA.

The defence relies upon Sumpton where Hamill J observed at [123] that:

The concept of "oppressive conduct" should be read ejusdem generis with the other proscribed conduct identified in s 84.

Hamill J further observed (at 132) that the ‘operation of s 84 does not require a consideration of whether "the truth of the admission was adversely affected"’ by the conduct. Nor is the relevant test (at [133]) ‘whether the will of the accused was overborne’.

In the case before him Hamill J concluded that the accused had been subjected to conduct that could properly be described as ‘oppressive’. He said (at [134]) that:

It involved the exercise of authority and power in a burdensome, harsh and wrongful manner and imposed on the accused unreasonable and unjust burdens.

The prosecution accepts that the approach adopted by Hamill J is helpful in defining the breadth of oppression. Whilst the prosecution accepts that some of the conduct of police, such as the interview between Mr McQuillen and the accused on 26 June 1990 was ‘wrong’ and ‘unacceptable’ it contends that the conduct of police does not fall into the category of oppression considered by the authorities referred to above.

In this regard the prosecution submits that there was no conduct contravening s 84 of the Act, even if considered without reference to the ‘extraordinary circumstances’ facing police in terms of the investigation in this case. However in this case it is submitted that the question of whether or not the conduct of police is conduct contravening s 84 must be considered in the light of the ‘extraordinary situation police found themselves in, a situation that included threats by Mr Eastman to murder police after Mr Winchester had been murdered’. It is submitted in written submissions dated 1 December 2017 that:

…. police knew, after receiving expert advice that in dealing with Mr Eastman they had to be firm and assertive, and had to maintain a presence and show strength. The conduct police engaged in to do so was entirely understandable given the distinctive personality they were dealing with. Police found themselves in a situation and in circumstances where they were trying to protect the public, trying to protect identified individuals, including prominent members of the community, and also trying to protect themselves. In the face of these extraordinary circumstances, they succeeded.

I accept, as did Martin AJ and Ashley AJ, that that is generally so. However, the prosecution submission that any consideration of whether or not conduct contravenes s 84 requires an assessment of the circumstances, is rejected by the defence. It is argued that that submission means that police could engage in unlawful ‘or otherwise violent, oppressive, inhuman or degrading conduct on the basis that the ends were seen to justify the means’. It is argued that such a suggestion ignores the text, history and purpose of s 84, which does not turn on the discretionary balancing of competing considerations such as s 138. It is submitted that had parliament intended for s 84 to operate as a ‘sliding scale’ depending on seriousness of the case or other consideration it would have provided so expressly.

Whilst there is weight in the argument advanced on behalf of the accused that the legislation does not provide a ‘sliding scale’ and obviously it is the case that no circumstances would justify seriously illegal or violent, inhuman or degrading conduct on the part of police, I consider nevertheless that the circumstances do require some consideration. Notwithstanding the submission made on behalf of the accused that the circumstances are not relevant to the question of s 84 conduct, I do not consider that they can be totally ignored.

As found by Martin AJ, in this case both overt and covert surveillance were justified and legitimate. The accused became aware of the electronic surveillance of his home through the inadvertent release of information by a female police employee to his then solicitor, Mr Donald, in the course of the inquest. The evidence makes it clear that the information caused the accused much anger over a continuing period of time. Nevertheless the electronic and other surveillance in question was clearly a legitimate use of police power. Likewise, some of the surveillance was sufficiently overt that the accused was well aware of it. As is apparent from the evidence, such as the accused throwing rocks at police cars, and indeed at members of the public whom he thought were police, such surveillance caused him considerable anger. In some circumstances such overt surveillance could be regarded as being harassing or oppressive. However, as found by Martin AJ much of that surveillance was justified by the extraordinary circumstances in which police found themselves. There was every reason to regard the accused as being dangerous both to himself and to the public including particular nominated members of the public such as the Ombudsman. Furthermore, in this regard the police were acting on the advice of Dr Milton.

Nevertheless, in my view, some of the conduct of Mr Ninness and Mr McQuillen identified by Martin AJ can be said to be harsh and authoritarian to the point of being oppressive on a number of occasions. Furthermore, the conduct of other police, including Mr Overland, in confronting the accused in the street and invading the personal space of the accused can be said to be oppressive. Accordingly the first step in the consideration of a s 84(2) test, that there was proscribed conduct on the part of police, is established. However, as is clear, there are a number of other important aspects of the s 84(2) test. They are that through legitimate reasoning there is a reasonable possibility that an admission or its making were influenced by the proscribed conduct.

It is fair to say that the evidence of the accused at the trial contained voluminous complaints of what he saw to be harassment, some of it said by him to being contemporaneous to the time of the trial. Clearly he was of the view that legitimate surveillance was harassment. By way of example (at 4981) the accused referred to the listening device of which he had become aware as ‘harassment surveillance’ There are other examples such as the accused stating that he saw what he believed to be police cars near his property as harassment. Another example is his statement (at T3684) that ‘I never said I was under surveillance. I was never under surveillance’. That said, he did not state that the harassment caused or influenced him to make any admissions. In fact, in general, he denied making any admissions or alternatively stated that there was a different explanation for the words recorded, or that the AFP experts ‘had got it wrong’ or ‘that someone has deliberately fabricated the material’ (as at T3714). Accordingly in order to determine whether the conduct of police was such that it raises the question of whether there is a reasonable possibility that admissions made by the accused and recorded by surveillance devices was influenced by such conduct, it is necessary to examine the psychiatric evidence which has been placed before me.

The psychiatric evidence of Dr Brereton

Pursuant to a request from the solicitors for the accused, Dr William Brereton, a senior consultant forensic psychiatrist, conducted a psychiatric assessment of the accused on 25 May 2017. In consequence of that consultation he prepared an 85 page report dated 21 August 2017. In addition he gave evidence before me on 14 and 15 November 2017.

The request for examination of the accused contained a number of questions to which Dr Brereton responded in his report.

Is response to a question as to whether the accused suffered from a diagnosable mental illness, Dr Brereton expressed the opinion that the accused suffers from a paranoid personality disorder. It is appropriate to observe that such a diagnosis is consistent with that made by other psychiatric specialists, including Dr Milton, over many years.

The next question addressed to Dr Brereton was whether any such mental illness could have influenced or caused him to make utterances that included dialogues or conversations with himself. In response to this question Dr Brereton said that he was circumspect as to the extent to which reliable conclusions could be drawn from the recordings of the listening devices. He did not think that the accused suffered from thought disorder and stated that the presentation of the accused, for example by his ability to undertake counter-surveillance measures, did not demonstrate thought disorder. However he expressed the opinion that the accused would have felt ‘particularly keenly affected by the surveillance and harassment which would have fed into his view of the world as persecutory’. Given those circumstances Dr Brereton did not find it surprising that the accused would try to deal with his stress and isolation by having constant background noise and having conversations with himself.

Dr Brereton was asked as to what impact the surveillance between 1989 and 1993 would have had on the accused and as to whether it was reasonably possible that the surveillance influenced him to speak and whisper to himself and reasonably possible that the surveillance would have influenced him to make admissions to the murder of Mr Winchester. Dr Brereton responded that he believed the surveillance would have aggravated the accused’s paranoid personality disorder. He said that whilst it may have fed the accused’s tendency to self-importance, and he may have gained satisfaction from fighting back, such as his counter-surveillance attempts and his recruitment of the media to support him, nevertheless his predominant emotional response would have been negative. Dr Brereton expressed the view that the most objective information about the accused’s mental state at this time is demonstrated by the report of Dr Veness who provided a medical report on 19 October 1991 in consequence of the accused having been involved in a motor vehicle accident and in which he sustained injury. Dr Brereton observed that the accused had ‘told Dr Veness that the surveillance had been wearing, unremitting and exhausting’ and that he ‘described feeling angry’ and ‘excessively suspicious’. Dr Brereton expressed the view that it was perfectly reasonable to assume a link between the surveillance and the recordings of the accused speaking and whispering to himself and that in his experience it was normal for individuals to talk to themselves at times, as a surrogate for company or to help with concentration, reasoning or problem solving, or simply without realising it. He said that while anyone who was a suspect would have been preoccupied with the question of the murder of Mr Winchester and the potential ramifications for them, in his opinion, the paranoid personality disorder from which the accused suffered, together with the pressure from surveillance, would have greatly exacerbated his tendency to obsessively ruminate on the issue. He said at [5.48]:

I believe it is likely the additional pressure of the surveillance, which kept the subject of the murder in the forefront of his mind and exacerbated his pattern of thinking (obsessive, intense, suspicious, combative etc) so that he would almost inevitably give voice to his ruminations and make comments about the murder. In my opinion therefore it is likely these circumstances influenced Mr Eastman to voice comments that appear to be admissions to the murder…

In response to a question as to whether pressure resulting from police surveillance and being considered a prime suspect in the murder of Mr Winchester may have influenced and or caused the accused to make admissions such as those referred to in the surveillance tapes, Dr Brereton said at [5.49]:

…. in my opinion, the pressure resulting from police surveillance and being considered a prime suspect, magnified by his personality, increased the likelihood of Mr Eastman talking to himself, increased his preoccupation with the murder …. and so were significant factors in Mr Eastman making the admissions ….

As is apparent from the quotations of the evidence of Dr Brereton referred to in the preceding two paragraphs he regularly referred to the word ‘surveillance’ both in his report and in giving his evidence. An important example of this appears in the examination in chief of Dr Brereton. Dr Milton had stated (at 16 of his report dated 9 November 2017) that he agreed with Dr Brereton:

…that the pressure of surveillance was likely to increase the chance of Mr Eastman talking to himself, while noting that the isolation present from adolescence or earlier would have established a pattern of self-absorption, including voicing his thoughts. That is, surveillance could have increased his isolation and hence the likelihood of him turning inward, but the pattern was already established. While surveillance was instituted because he was a major suspect and hence it implied guilt, it was unlikely to evoke thoughts of guilt in the same way as, say, vigorous interrogation in which a person is repeatedly accused of the killing.

Dr Brereton was taken to the above statement of Dr Milton by Mr Stanton and asked what he had to say as to that statement. He said (at 524):

I think we agree on that point but it’s a matter of weight you give it. So I would agree that Mr Eastman would have been very likely to have suffered social isolation or did in fact suffer social isolation at periods during his life and he may well have previously coped with that by talking to himself out loud at home. The pressure of surveillance which would have led to him being increasingly stressed, so having to find a way to cope and manage with that, increasingly isolated so more than usually deprived of social contact and in addition the surveillance would have kept the issue of the allegations of murder constantly at the forefront of his mind. So I think if you put all those things together the surveillance would have been a very significant contributor to him at home voicing thoughts related to the allegations. So it’s a matter of degree, I think Dr Milton is saying look, he’s always done this, it’s an established pattern so surveillance won’t have had much effect. I agree, this is probably an established pattern with Mr Eastman but in my opinion it’s very likely the surveillance would have had a significant effect.

Mr Stanton then asked, and Dr Brereton answered, as follows:

Do you agree with the evidence of Dr Milton that when it comes to issues of harassment that would have a ratcheting up effect in relation to that?---Yes, I think we must always bear in mind his diagnoses. So he’s got a paranoid personality disorder. That means that quite apart from harassment one could expect him to misconstrue even friendly actions of other people to be threatening and malevolent in intent. If you then put a layer of surveillance that may be entirely appropriate, Mr Eastman were he to notice that is almost certain to read into it a lot more than is meant by it and to feel more keenly than most[,] I think I put in my report[,] a negative emotional impact as a result of that. If you then load onto that the harassment that has been brought out in this case, then what you’ve got is a complete reinforcement I suppose of his worst fears and so an increase in the levels of stress, preoccupation but a huge increase in Mr Eastman’s perception of the danger that is there to him.

Mr Stanton then took Dr Brereton to a further statement appearing at page 16 of Dr Milton’s report whereby he stated that:

Dr Brereton considered that surveillance not only increased the likelihood of Mr Eastman talking to himself, but increased the chance of him making admissions, in effect, confessing to the murder because surveillance had stressed him ….

Dr Brereton responded in the following way:

I think that’s slightly – slightly – I understand why but I think that slightly misrepresents what I meant and maybe I didn’t put it particularly clearly. So I am of the opinion that that surveillance increased the likelihood of Mr Eastman talking to himself, yes, so that’s the isolation, the stress, the having to find a way of expressing himself, problem solve. And then the fact that the surveillance constantly tied him to the allegations, the fact that some of the harassment was directly with the purpose of directly keeping it in his mind meant that then the content of what he is saying is very, very likely to be related to these matters. The content then might appear to be an admission, but I’m not saying that what has happened is something that would directly make him admit.

Cross-examination of Dr Brereton

Dr Brereton agreed that he was told some things by the accused in the course of his interview with the accused that he accepted as not being correct. By way of example Dr Brereton said that he did not think the accused gave an ‘accurate’ account in terms of his subjective experience’, but also that ‘he omitted to tell me about his threats and aggression that are clearly documented’. A further example was the claim to Dr Brereton by the accused that he was unlikely to use a particular expletive. This was rejected by Dr Brereton who said:

…. there's plenty of evidence to show that he's prepared to use that particularly egregious word if he thinks he should be [sic].

Dr Brereton said that in the course of an interview he would not make an annotation if he had come to the conclusion that the accused was not truthful. He said:

.… I present the interview that I took and I would present that as Mr Eastman gave to me. I wouldn't do [sic] go through, as I haven't, and annotated and say, "In my opinion, this bit was correct and this bit was a lie …."

Although Dr Brereton had been provided with a significant amount of material (58 documents) by the solicitors for the accused to assist him in the preparation of his report, he was not at that time provided with a transcript of the evidence given by the accused at the first trial. In the course of the interview between Dr Brereton and the accused (at 3.128-129) the accused told Dr Brereton that a police officer had said ‘Eastman’s on the edge’ by which he meant close to suicide. The accused then told Dr Brereton that he was indeed ‘on the edge’. The accused said ‘I don’t know how I survived’.

In the course of cross-examination the learned prosecutor provided Dr Brereton with what it was that the accused said in relation to this matter in giving evidence at the voir dire at the first trial on 8 August 1995 (at 3694 line 19-23) as follows:

Well, let me put it on the record now, if I'm ever found dead with a supposed suicide note that I'm not in the slightest bit suicidal or depressed and I have no expectation that I will be, no matter how long it takes to get this business cleared up and to have me compensated. I will not be suicidal at any stage.

On 5 September 1995 in the course of the trial the accused said (at 4700), after being asked what he had said to neighbours:

I said to a number of neighbours several things that, (a), I was in very good spirits despite the harassment that I was receiving. If I were ever found dead with a suicide note that it would be a fake one...

Dr Brereton agreed that what the accused said in 1995 was inconsistent with what the accused told him. Likewise in relation to his relationship with his parents Dr Brereton said ‘I don’t think he was telling me the truth’. Dr Brereton said that he did not challenge the accused in relation to this untruth as ‘I thought that it would spoil the rapport which would be important to the rest of the interview’.

In the course of the cross-examination Dr Brereton was referred to letters that had been written by the accused to Ms Finke and Ms Freiberg. These letters contained threats to kill people. Dr Brereton agreed that a reasonable interpretation of those statements was that the accused was expressing a desire to kill people who had, in his view, wronged him. Dr Brereton agreed that the expressions in those letters of a desire to kill people who had wronged him, had nothing to do with police. He also agreed that whatever characteristics of the accused that existed and that caused him to write such things before the murder of Mr Winchester, continued to operate at the time of the listening devices. Dr Brereton agreed that other factors, which impacted upon the accused at that time, included legitimate police surveillance and the fact of being the principal suspect in a murder investigation.

Dr Brereton was asked questions about how he would have expected the accused to react after the ‘devastation as he puts it’ of losing his job. Dr Brereton said:

Given that he’s got a paranoid personality disorder I would have expected him to have fought that through tribunals, appeals, to probably send letters protesting how unfairly he’s been treated. I think he would have tried to have done – essentially approach it in two ways, one which would have been to complain about his unfair treatment in a variety of ways and the other which would have been trying to achieve restitution in a non-legal sense. I suppose also in a legal sense.

He said further:

If he didn’t get his way I think he would have seen that as people being deliberately unfairly obstructive and difficult and he would have reacted angrily and he would have been upset about it, yes.

He agreed that over time, as the accused could not get back into the public service and could not find alternative employment, there would be an increasing sense of anger and sense of injustice ‘coupled with this kind of drive and persistence to put things right to get his own way’. He agreed that the failure to have the Russo charge withdrawn so as to give the accused the best chance of getting back into the public service, would have been something that caused the accused significant distress and he said:

I think if we assume that he saw that Russo charge as crucial and the factor that would prevent him from getting back into work, then yes I think he would focus on it and it would make him very angry as you say.

He agreed that it was likely that the anger that the accused had in relation to the public service was then turned towards the police at the beginning of 1988 in relation to the Russo investigation.

Dr Brereton in his report referred to his enquiry of the accused in relation to his forensic history. At [3.108-109] of his report Dr Brereton noted that the accused had said that:

…. he is not habitually verbally aggressive but he did notice he had an increased tendency to "verbal and petty physical aggression" when he was under considerable stress as a result of surveillance.

Dr Brereton stated that he was ‘interested’ at that point of the interview in what the accused ‘was going to volunteer about his forensic history’. He was told by the accused that he ‘couldn’t remember much more detail’ which Dr Brereton stated was ‘another example of him underplaying things’.

Dr Brereton said that he accepted that the claims made by the accused that the Ombudsman, Coroner, Attorney-General, Judges and Magistrates were ‘crooked’ was an unwarranted accusation. Dr Brereton’s explanation for that was:

Yes, that’s intrinsic to his personality, so accusations by people who had affronted him in his perception, people who may not have even have meant to, yes, it’s part of his personality.

Dr Brereton agreed that ‘it’s very hard’ to accept any complaints made by the accused against police without satisfactory corroboration.

Dr Brereton agreed that the ‘lengthy battle’ that the accused had had with the public service to get his job restored ‘would have been a factor that would stress him but it seemed to have been superseded to a larger degree by the events surrounding Mr Winchester’. He agreed that before the events surrounding Mr Winchester, the Russo events would have been distressing for him also. Dr Brereton agreed with Dr Milton that the accused ‘gained some paradoxical pleasure from [it], again [it] gave him focus, gave him drive’. However, Dr Brereton said that although the accused had some ‘victories’ those events broadly speaking were ‘stressful’. However, Dr Brereton agreed that he had been told by the accused (at [3.67] of his report) that the accused did not find the disputes about employment to be ‘intrinsically stressful’. Dr Brereton agreed with Dr Milton that throughout this period the accused would sometimes have ‘come away with a feeling of having bested people’.

Dr Brereton agreed that the accused would be willing to invent complaints about police if he thought it would be helpful. He agreed that the accused whether by reason of his disorder or otherwise, ‘instrumentally used dishonesty’. He agreed that the use of dishonesty by the accused would involve knowingly exaggerating complaints about police and furthermore that the accused would ‘knowingly and falsely be prepared to complain about any effect it had on him too’.

At [3.118] of Dr Brereton’s report it was observed that ‘Mr Eastman reported the main effect of the police surveillance/harassment was to isolate him.’ Dr Brereton referred to a report of Dr Veness who saw the accused in November and December 1992 and the description given to Dr Veness by the accused that he felt alienated from others. The accused was recorded as having told Dr Veness that he had ceased involvement with Meals on Wheels, and also with the Bird Watching Club following an altercation with another member. Dr Brereton agreed that this was behaviour in which the accused had engaged prior to the Russo charge.

Dr Milton said:

He was I think quite a miserable chap up to 1989 and he was seeing psychiatrists quite frequently, had medication for no particular benefit and I mean he didn’t succeed in anything, I think he was really quite miserable and I think after his incarceration there is no doubt he was…but 89 to 93 there was not a lot of objective evidence say by way of psychiatric treatment, by seeking psychiatric help… but it did seem to me that he was perhaps [sic] had more of a purpose in life at that time than he had before it and certainly it gave his life some meaning which I don’t think it had before.

Dr Milton said that although the accused was ‘extremely annoyed with the police and it was a preoccupation …. he had something on which to focus’ and in Dr Milton’s opinion he focused on ‘remarkably well’.

In the report prepared for this application Dr Milton noted that:

For the purpose of deriving a hypothesis regarding his mental state, one can reasonably assume that Mr Eastman killed Mr Winchester.

Dr Milton was cross-examined by Mr Georgiou about this statement and gave the following responses:

In other words, you view his mental state through the prism of a man who is guilty of the crime that's been alleged against him?---That is based on Justice Martin's notion that he's fairly certain that he did kill Mr Winchester.
I understand that but I’m asking the way in which you have conducted your analysis in this report, it's all premised on the basis he killed Mr Winchester?---On the basis – yes, that was how I obtained the information, yes.
It's how you came to view the information as well, isn't it?---I thought there was a fairly good chance of him being guilty of the crime in any event but I thought that Justice Martin's comment allowed me to do what doctors do and that is to speculate on the basis of probabilities and this was even higher than a probability. The justice said he was almost certain or fairly certain.
You did not stand back and consider it also from a perspective of perhaps this man is not guilty of the crime? You haven't done that at all, have you?---I said that from the beginning. ….. I thought that from the beginning that perhaps the police were wrong and I looked at him not from the point as police or lawyers would from the point of physical evidence, from the point of view of how that came together from an emotional or psychological point of view and I thought there was reasonable reason to think that he had done it.

Despite the attack made on Dr Milton that by reason of his answers to the above passage of cross-examination his perspective was biased, I do not consider that his evidence did reflect bias. First, it was at all times consistent with evidence give prior to Martin AJ’s conclusion. Secondly, the fact that in many aspects Dr Brereton and Dr Milton agree is of significance. One example of significant agreement is the evidence of Dr Brereton (at transcript 544):

I agree with Dr Milton when he says this gave him the surveillance, fighting against it, the charges fighting against it gave him an alternative focus as somewhere else to place his energies and his drive.

Further Dr Brereton said of Dr Milton (at 561 and 562) that he had done ‘marvellous work’ and that his reports had been ‘extremely good’. A point of disagreement between Dr Brereton and Dr Milton was expressed by Dr Brereton (at Transcript 563) when he said:

I think that there is reason to say that, I do agree but also there are parts that I disagree with the approach that Dr Milton has taken. So if for example you look at the recording devices and Mr Eastman says the word “Christian” and Dr Milton starts to talk about how that might reflect on his early religious education, I think Dr Milton has been taking it too far, I think he has been reading more into the information we have than is reasonable for legal purposes. Perfectly reasonable I think to do it in a clinical scenario, but I think we have to say that there’s a point at which we move from having an opinion to being very speculative and I guess an opinion is based on what – you would say I’ve got robust reasoning and quite good clinical information and quite good collateral and this is why I’ve got my opinion and then I say well, I’m speculating and that’s qualitatively different because although what I’m going to say I think is plausible I’m recognising that I don’t really have the foundations to say that with any certainty.

I accept that some of the conclusions reached by Dr Milton and particularly those referred to in Annexure C, the majority of which I have disregarded, are somewhat speculative, but as Dr Brereton conceded it was ‘Perfectly reasonable …. to do it in a clinical scenario’.

Dr Milton stated that he agreed with Dr Brereton’s conclusion that because the accused has a paranoid personality he would have ‘felt particularly keenly affected by the surveillance and harassment which would have fed into his view of the world as persecutory’. He stated that that opinion of Dr Brereton accorded with his own opinion expressed in a letter of 11 January 1990 when he said ‘of itself surveillance would be likely to cause massive outrage and consequent unceasing and energetic efforts to have it stopped’ and he agreed with the proposition put to him by Mr Georgiou that of itself surveillance would cause that and harassment would be a ratcheting up of the massive outrage. However he said that in his opinion surveillance and harassment would not cause the accused to have suffered mental illness of some kind. He said that he agreed with Dr Brereton’s view that the ‘predominant reaction [to surveillance] would be negative with social isolation, anger, irritability and effect on mood’ Dr Milton said that his view about the effect of surveillance was that it ‘would have been to increase his isolation to at most a moderate degree and this coupled with his anger at not being able to stop surveillance would have made him ruminate somewhat more’. However he agreed with the proposition put to him by Mr Georgiou that the rumination would be magnified if ‘we step up from surveillance to harassment’. He agreed that the circumstances of surveillance and harassment was likely to influence the accused to ‘voice comments’. Dr Milton agreed that:

.… the pressure of surveillance was likely to increase the chance of [the accused] talking to himself while noting that the isolation present from adolescence or earlier would have established a pattern of self-absorption including voicing his thoughts.

However he did accept that there could be an increase in isolation and the likelihood of the accused turning inward in circumstances where a pattern of that nature was already established, but increased by surveillance and even more so by harassment.

The question to be determined at this time is whether there is some evidence that indicates a reasonable possibility that the proscribed conduct of the police influenced the making of the admissions in question. Martin AJ concluded at [1666]:

The harassing and provocative conduct was undertaken with the deliberate intention of provoking the applicant into saying something incriminating which could be recorded on listening devices in his home.

He observed further at [1669] that:

The inappropriate nature of the conduct is exacerbated when regard is had to the [accused’s] mental state and the intention of police to play upon and aggravate that mental state.

In addition to the matters considered by the Martin Inquiry, the defence relies upon a statement made by Mr Ninness to the former solicitor for the accused, Mr Donald which is the subject of an audio tape and which is likely to have been recorded on 25 May 1990 (although the transcript thereof bears date 25 May 1994). In the course of that discussion, Mr Ninness said to Mr Donald:

We thought he’d eventually crack on our device that he’d say I already killed fucking Winchester I’ll kill you next.

Furthermore in the same discussion Mr Ninness said to Mr Donald:

As you say he goes up and down. We’ve had him to crescendo when we thought any second he’s going to crack.

In this regard the defence placed considerable reliance on the evidence given by Mr Ninness before Martin AJ in February 2014. At 2563 of the transcript of the Martin Inquiry, Ms Chapman of counsel asked the following questions of and obtained the following answers from Mr Ninness:

You’d be aware of course that Mr Eastman made complaints at least by 1990 of harassment by the AFP?---Yes.
You were interviewed because of those complaints?---I was.
I’m focussing on the confessional material for now. One suggestion could be made that there was harassment of Mr Eastman during the time which resulted in him feeling pressured to talk to himself and confess. Was that cause and effect something that was in your mind?---Most definitely and very concerning.
Well, what I’m putting to you is that there was deliberate harassment by the police in order to get some sort of confession?---That wasn’t our approach but certainly I was aware of the dilemma we were in as far as having surveillance on him and it would cause others to think that we were – a campaign of harassment. I was well aware of that.

Furthermore (at 2694) the following exchange took place:

You were aware, obviously, from the reports of Dr Milton that he had been diagnosed with a paranoid personality disorder?---Yes, I do.
Did you consider how this “in your face” behaviour might cause someone like Mr Eastman with such a disorder to react?---Also Dr Milton informed us he was a paranoid personality, but he was also dangerous.
Anyway, you say that you were acting on Dr Milton’s advice that this sort of “in your face” presence may have caused him to talk about it?---Possibly, yes.
HIS HONOUR: How did you think he might react, bearing in mind he was a paranoid personality disorder?---Well, hopefully it would drive him into talking to somebody or going to the firearm.

Further (at 2696) in relation to the period of time after the first alleged admission on 3 June 1990, Mr Ninness was asked:

And did you think, well, we’ve succeeded in keeping that in his mind because now we’ve got this admission in June of 1990?---I didn’t think we’d succeeded to that extent ….

Immediately after that answer Martin AJ inquired as to whether Mr Ninness thought he was on the ‘right track’. The answer given was:

I believe so, yes. But again, as I said yesterday, we knew we were walking a fine line with it. …. With the way we - with the way we were conducting ourselves.

The following exchange then took place with counsel asking the following question and obtaining the following answers:

Well, to an extent you were deliberately - I’ll use the word “harassing”, harassing Mr Eastman to produce a possible consequence of investigation?---Possibly. It could be construed that way, yes.
Do you see how it could be construed that way by someone?---It could be, yes. It wasn’t our intention, but that could be how someone could interpret it.
To some extent your intention was to really be there to produce a particular result?---Yes.
One of those results was public safety, and another one was confessions, is that right?---Yes.

The defence contends that the above evidence demonstrates that the intention of the police in harassing the accused was to have him speak to himself in the confines of his home.

On the basis of the above material it is submitted by the defence that it is ‘overwhelming that there was a program of harassment aimed at having [the accused] confess either to somebody else or at his home’. It is submitted that there was oppressive conduct directed towards the accused and that the psychiatric evidence before me does not establish on the balance of probabilities that the alleged admissions were not so influenced.

The prosecution however argues that a reasonable possibility that the unjustified harassment influenced the making of the admissions in question does not arise. In this regard the prosecution places considerable emphasis on the fact that the accused gave evidence that the harassment would not cause ‘a great stress’.

In relation to this evidence, Martin AJ said at [1714]:

There is no doubt that the applicant was angered and frustrated by the conduct of the police, but to a considerable extent that anger and frustration arose from the constant surveillance which was, in the circumstances, well justified. In addition, from the perspective of the applicant, the harassment was not a source of ‘stress’. In evidence given during the voir dire at the trial, the applicant’s Counsel put a leading question to the applicant which did not elicit the response which Counsel was seeking (T 3694):
Q And naturally you were under a fair bit of stress during this time because of the surveillance or the following of you, I should say, amounting to harassment?
A Well, no, the harassment, even if unjustified, would not create a great stress. It was the specific fear of my physical safety based on the advice that I’d had from an experienced barrister who was a former officer ...

Further Martin AJ in referring to this evidence in his findings at [1715] said:

The absence of a causal connection between the conduct and the making of the statements is also a fatal flaw in the argument that the evidence of the recorded statements should have been excluded in the exercise of the discretion.

That said I accept that Martin AJ was not addressing himself at the time of making this statement to s 84 as the application of s 84 involves no exercise of discretion.

The prosecution relies upon the fact that the accused did not give evidence before Martin AJ or before me. In addition the prosecution submits that the fact that the accused gave the evidence referred to above was never explored with him by Dr Brereton. The evidence could not have been explored by Dr Milton with the accused, because the accused refused to be interviewed by him.

It is submitted that in circumstances whereby Dr Brereton agreed that the accused is a person who lies and manipulates when it suits him and Dr Brereton agreed that it is important to test assertions made by the accused with objective evidence, it was important for Dr Brereton to take the accused to the answer given by him at trial as to whether or not the conduct of police caused him stress. There is no suggestion either in the written report of Dr Brereton, or in his oral evidence, that he did so. I find that surprising, particularly in circumstances whereby Dr Brereton considered it appropriate to view the statement made by the accused at trial that there was ‘no great stress’ as an untruth and to hypothesise that the reason for being untruthful was that the accused did not want to appear weak, and yet at the same time Dr Brereton accepted the truth of the statement by the accused that he was in ‘mortal fear’.

Furthermore it is submitted by the prosecution that most, though not all, of the conduct said by Martin AJ to have ‘crossed the line’ occurred well before the installation of the listening device on or about 21 September 1989 and prior to the first admission relied upon by the prosecution which was recorded on 3 June 1990. This submission is substantially correct. The incident at the time of the return of the accused’s car occurred on 23 January 1989. The incident whereby Mr Ninness put his foot in the door of the accused’s premises occurred on 24 February 1989, and the misbehaviour of Mr Ninness at the War Memorial occurred on 17 March 1989. The confrontation whereby Mr Ninness took away the car keys from the accused in Ainslie Avenue occurred on 22 March 1989. Each of these events occurred at least a year before the first of the admissions upon which the prosecution relies. It is true of course that the unacceptable and harassing behaviour of Mr McQuillen took place on 26 June 1990. This event took place some days after the second admission and approximately a month before the third admission upon which the prosecution seek to rely. Martin AJ referred to this incident at [1713] as follows:

The [accused’s] response to the harassment was well demonstrated in the interview conducted by Mr McQuillen on 26 June 1990. As the written submission of the AFP pointed out …, the [accused] was calm throughout and clearly in control of his thoughts and emotions. At times, the [accused] treated Mr McQuillen and what Mr McQuillen was saying with disdain.

Conclusion

The question of whether or not there is some evidence that indicates a reasonable possibility that the oppressive conduct of police influenced the making of the admissions in question depends to a great degree upon whether the evidence of Dr Brereton establishes such a reasonable possibility. The evidence of Dr Milton is to the effect that there is no basis to say that the admissions in question were in any way influenced by the misconduct of police. It is appropriate to say that I consider both experts to be impressive witnesses who did their best to assist the court in a professional manner. I consider them both to be well qualified and careful witnesses who endeavoured to address the issues in a considered manner. To a considerable extent, as pointed out above, Dr Brereton agreed with the evidence that Dr Milton provided to the court. On the one hand Dr Brereton had the advantage, which Dr Milton did not, of interviewing the accused. However Dr Milton had the benefit of having been involved with the case for a long period of time and having had detailed understanding over that period of time of the objective evidence of the behaviour of the accused. Dr Brereton, to at least some degree, had to base his opinion on the subjective statements provided to him by the accused, although he clearly acknowledged the necessity for objective evidence to be available to support those subjective statements.

I have carefully scrutinised the evidence of Dr Milton, as I would in any event, but particularly because he was engaged by police to, in effect, assist them in an operational role. Notwithstanding that fact I consider that his evidence is both objective and impartial and I see no reason to consider that he has been in any way compromised either situationally or professionally. On the other hand, I consider that a number of issues arise in respect to the evidence of Dr Brereton. The fact that he was not provided with the transcript of the evidence given by the accused at the first trial prior to the preparation of his report is a matter of significance as relevant matters appearing therein were not discussed with the accused by Dr Brereton. Furthermore as pointed out above much of Dr Brereton’s evidence was related to the effect that surveillance might have on the accused, rather than the effect of the harassment by police which went beyond legitimate surveillance activities. The failure on his part to distinguish between the consequences of either justified surveillance or unjustified harassment is not without significance in relation to the question to be determined by me as to whether pursuant to s 84(2) of the Act there is ‘some evidence that indicates through legitimate reasoning that there is a reasonable possibility that an admission or its making were influenced by proscribed conduct’.

As stated above I consider police conduct which went beyond legitimate overt and covert surveillance was harassment and can fairly be described as oppressive and on a number of occasions as degrading. Whilst I accept the evidence of both Dr Brereton and Dr Milton that one cannot rely upon the voluminous and vociferous complaints made by the accused of what he perceived to be harassment without objective supportive evidence. That said there is sufficient objective evidence to say that at times the conduct of police over a considerable period of time was oppressive and, as I have said, on occasions degrading. Furthermore the evidence establishes that although the police had real and justified concerns that the accused might be a danger to certain individuals and the public it is apparent that, as found by Martin AJ, the ‘harassing and provocative conduct was undertaken with the deliberate intention of provoking [the accused] into saying something incriminating which could be recorded on listening devices in his home’. However the fact that the police may have had that intention does not by itself lead to the conclusion that police misbehaviour possibly influenced the making of the admissions.

The question then to be considered is whether there is a reasonable possibility the admissions in question were influenced by the relevant misbehaviour of police. Dr Milton rejects the possibility. The highest his evidence reaches is that the harassment may have made the accused ruminate more than otherwise and talk to himself more than otherwise. However that is not sufficient to establish that the particular admissions were influenced, or even partly influenced, by such conduct. On the other hand Dr Brereton, at least in his written report, accepted that ‘surveillance’ was likely to influence the accused to voice comments that ‘appear to be admissions to the murder’. As stated above he was specifically asked to report on what impact ‘the surveillance between 1989 and 1993’ had on the accused and as to whether it was reasonably possible that ‘the surveillance’ influenced the accused to speak and whisper to himself and as to whether it was reasonably possible that the surveillance influenced the accused to make admissions to the murder. Dr Brereton stated that ‘it is perfectly reasonable to assume a link between the surveillance and the recordings of [the accused] speaking and whispering to himself’. Whilst he conceded that the accused had complicated issues to resolve in his life and that anyone who was a suspect would be preoccupied with the question of the murder of Mr Winchester, he considered that the pressure from surveillance would have greatly exacerbated the accused’s tending to obsessively ruminate on the issue. Dr Brereton concluded that it was likely that the additional pressure of the surveillance kept the subject of the murder in the forefront of his mind and exacerbated the accused’s obsessive, intense, suspicious, combative pattern of thinking so that he would ‘almost inevitably give voice to his ruminations and make comments about the murder’.

That evidence is as strong as the evidence is about the nexus between the conduct of police and the admissions. However that evidence, which is in many ways limited in any event because it is dealing with ‘surveillance’ rather than the improper harassment of the accused, needs to be read in the context of Dr Brereton’s evidence (at transcript 525) that he was ‘not saying that what has happened is something that would directly make him admit’. The essence of Dr Brereton’s opinion appears at the same page:

So I am of the opinion that that surveillance increased the likelihood of Mr Eastman talking to himself, yes, so that’s the isolation, the stress, the having to find a way of expressing himself, problem solve. And then the fact that the surveillance constantly tied him to the allegations, the fact that some of the harassment was directly with the purpose of directly keeping it in his mind meant that then the content of what he is saying is very, very likely to be related to these matters.

Accordingly, as much as I, like Martin AJ and Ashley AJ, agree that there is clear evidence that the accused was from time to time the subject of oppressive conduct by police, I also agree with both of them that the causal connection between such conduct and the admissions relied upon is absent. As stated above, in essence, the highest point the evidence reaches is that such conduct would have been part of the cause of stress for the accused which in turn would make it more likely that he would ruminate and talk to himself in the confines of his home.

In my view any connection between the oppressive conduct of the police and the admissions relied upon by the prosecution is so tenuous that there is no reasonable possibility that the making of the admissions was influenced by the conduct. Accordingly in my view the accused has failed to meet the evidentiary onus required of him by s 84(2) of the Act.

That said however, and in case the evidence, tenuous as it is as to whether or not the conduct of police had any influence upon the making of the admissions in questions, could be seen to be sufficient to raise the issue in the proceedings as required under s 84(2) of the Act, it is appropriate that I consider the operation of s 84(1) of the Act. Clearly if I had concluded that the evidence is such that it could rationally and reasonably be said that there is a possibility that the oppressive conduct did influence the making of the admissions, then I would need to be satisfied on the balance of probabilities that the admissions (or one or other of them) were not so influenced by the relevant conduct. In such circumstances the onus would fall upon the prosecution to so establish that that was the case.

Even if I were to consider that the evidence raised a possibility that the oppressive conduct of police ‘influenced’ the making of the admissions, I would have no hesitation in concluding on the balance of probabilities that in fact the conduct did not do so. There are a number of reasons why I would so conclude.

First, the basis of Dr Brereton’s view is that the:

…. surveillance constantly tied [the accused] to the allegations …. meant that then the content of what he is saying is very, very likely to be related to these matters.

This reflects Dr Brereton’s acceptance of the fact that the conduct caused such stress in the accused that he would be more likely to ruminate and talk about the case. Of course the only evidence of the accused on the matter, being that given at the trial, is that harassment did not cause stress, but did cause him to be in fear of his life. There is of course no evidence that would justify the latter fear on a rational basis, but taking into account the paranoid personality disorder from which the accused suffered, it may be possible that he genuinely held such a fear. It is of course true that in the course of his evidence Dr Brereton gave a number of examples of things which he was told by the accused and which he did not accept as the truth. The evidence of the accused as to the harassment not causing him stress was regarded by Dr Brereton as not being truthful evidence. Nevertheless, the fact is that the accused when given, via a leading question from his own counsel, the opportunity to connect harassment with stress, did not do so.

Secondly, and as submitted on behalf of the prosecution, the overwhelming majority of the particularly egregious behaviour of the police took place at a time which is remote temporally from the time of the admissions. It is simply not possible to say in the circumstances of this temporal separation that such conduct had any influence upon the admissions said to have been made by the accused.

Thirdly, Dr Brereton failed to distinguish adequately the difference (if any) between the effect of legitimate and, in the circumstances then facing police, necessary surveillance, and the oppressive conduct of police.

Fourthly, apart from any stress arising from police harassment as distinct from legitimate surveillance, there are many reasons why the accused would have been suffering stress. Clearly he was the leading suspect in an intensive murder investigation and he knew it. He was under legitimate surveillance. His paranoid personality led him to believe that he was being treated unfairly by a variety of people including police, the Ombudsman, reporters and others including, as he told Dr Brereton, his own lawyers.

Fifthly, as much as Dr Brereton and Dr Milton are in agreement about many things, I accept Dr Milton’s evidence that the accused demonstrated his resilience in many ways and that his resistance to surveillance and his counter surveillance measures gave him focus and reflected his resilience and that the accused was not overborne by the conduct of police and that there is no connection between that conduct and the admissions.

Lastly, there is simply no cogent connection between the s 84(1) conduct and the admissions. Mr Stanton submits that neither of the expert witnesses provided a proper foundation for the prosecution to establish on balance that the alleged admissions were not influenced by the relevant conduct. In this regard he relies upon a question asked by Mr Georgiou of Dr Milton in the course of Dr Milton’s evidence when Dr Milton was asked if there was a connection between the harassment of the accused and his talking out loud in the privacy of his own home to which Dr Milton agreed. It is submitted by Mr Stanton that such a connection is the influence in question and that on balance I should not be satisfied that there was not the relevant level of influence.

That submission requires a considerable step in logic. Whilst I accept that the constant surveillance by police and the oppressive behaviour did have the effect of keeping the allegations at the forefront of the mind of the accused and were connected to his ruminations at home, it is a substantial leap in logic to say that that conduct influenced the admissions made by the accused against his own interests in the course of those ruminations.

In my view the appropriate determination of this issue is that the application made on behalf of the accused, for a ruling that the admissions made by the accused, that were tape recorded in the course of surveillance of his home, are inadmissible, should be dismissed.

Until further order the reasons for this ruling are not to be published other than to the parties and their legal representatives.

I certify that the preceding one hundred and eighty-six [186] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.

Associate:

Date: 17 January 2018