R v Eastman (No 30) - [2018] ACTSC 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 30)
Citation:	[2018] ACTSC 7
Hearing Date(s):	11 July 2017
DecisionDate:	2 February 2018
Before:	Kellam AJ
Decision:	The evidence referred to in notices filed by the prosecution pursuant to s 67 of the Evidence Act 2011 (ACT) in relation to Mrs Margaret Haraszti and Mrs Rosalyn Matthews-Russo is not admissible.
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility in a criminal trial of hearsay evidence where maker of the representation is deceased – notice issued pursuant to s 67 relying on ss 65(2)(b) and 65(2)(c) of the Evidence Act 2011 (ACT) – when is a representation made ‘shortly after’ the asserted fact pursuant to s 65(2)(b) of the Evidence Act 2011 (ACT) – a representation that is not made ‘shortly after’ the asserted fact does not meet the requirement of s65(2)(b) – the representation not made in circumstances that make it highly probable it was reliable as required by s 65(2)(c) Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 65(2)(b), 65(2)(c), 67, Dictionary Pt 2 s 4(1)(a)
Cases Cited:	Conway v The Queen [2000] FCA 461; 98 FCR 204 Harris v R [2005] NSWCCA 432; 158 A Crim R 454 Sio v The Queen [2016] HCA 32; 259 CLR 47 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490
Texts Cited:	Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters, 12^th ed, 2016)
Parties:	The Queen (Crown) David Harold Eastman (Accused)
Representation:	Counsel Mr M Thangaraj, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused)
Solicitors Office of the ACT Director of Public Prosecution (Crown) ACT Legal Aid (Accused)
File Number(s):	SCC 111 of 1992

Kellam AJ:

On 11 July 2017 I heard submissions relating to a number of witnesses who are the subject of notices which have been issued by the prosecution pursuant to s 67 of the Evidence Act 2011 (ACT) (the Act).
All of the witnesses in question are now deceased and thus they are all ‘unavailable’ to give evidence within the meaning of s 4(1)(a) of the Dictionary (Part 2) of the Act.
The witnesses who are the subject of the submissions:
(a)Mr Phillip Cotter;
(b)Mr Roderick Campbell;
(c)Ms Marie Eastman;
(d)Mrs Margaret Haraszti; and
(e)Mrs Rosalyn Matthews-Russo.
I shall not deal with the s 67 issues relating to Mr Cotter, Mr Campbell and Mrs Eastman as their evidence is the subject of later submissions which were made subsequent to my ruling that although Tendencies 1, 2, 3 and 5 sought to be relied upon by the prosecution are defective, Tendency 4 is capable of being admissible.
Accordingly the matters that this ruling will deal with are the s 67 notices upon which the prosecution seeks to rely in relation to the evidence of Mrs Haraszti and Mrs Matthews‑Russo. The evidence of both of these witnesses was submitted by the prosecution…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Eastman (No 30)

Details

AGLC: R v Eastman (No 30) [2018] ACTSC 7
Case: [2018] ACTSC 7
Decision Date: 2 February 2018

CaseChat Overview and Summary

In the case of R v Eastman (No 30), the prosecution sought to introduce hearsay evidence in the form of representations made by two witnesses, Mrs Margaret Haraszti and Mrs Rosalyn Matthews-Russo. Both witnesses were deceased at the time of the trial. The evidence was intended to be admitted under sections 65(2)(b) and 65(2)(c) of the Evidence Act 2011 (ACT). The primary issue before the court was whether the representations could be considered as having been made 'shortly after' the events they described, and whether they were made in circumstances that made them highly probable to be reliable.

The court considered whether the representations could be regarded as having been made 'shortly after' the asserted facts. It was held that the representations were not made shortly after the events they described, which meant they did not satisfy the requirement of section 65(2)(b). Additionally, the court examined whether the representations were made in circumstances that made them highly probable to be reliable under section 65(2)(c). The court found that the circumstances did not meet this requirement either.

Consequently, the court ruled that the evidence referred to in the notices filed by the prosecution was not admissible. This decision hinged on the timing and reliability of the representations, both of which were found lacking. The court's reasoning was rooted in the statutory provisions of the Evidence Act 2011 (ACT) and the specific circumstances of the case.

Orders

Orders of the court

The evidence referred to in notices filed by the prosecution pursuant to s 67 of the Evidence Act 2011 (ACT) in relation to Mrs Margaret Haraszti and Mrs Rosalyn Matthews-Russo is not admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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