R v Eastman (No 31) - [2018] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 31)
Citation:	[2018] ACTSC 11
Hearing Dates:	21 – 22 June 2017
DecisionDate:	6 February 2018
Before:	Kellam AJ
Decision:	See [238]
Catchwords:	CRIMINAL LAW – EVIDENCE – Whether identification evidence should be admitted – whether evidence should be excluded pursuant to ss 56(2), 114, 135, 137 and 138 of the Evidence Act 2011(ACT) and/or the common law rule to exclude unfair evidence – whether probative value of identification evidence outweighed by unfairness to accused – test to be applied by trial judge when deciding whether taken at its highest identification evidence is probative without assessing credit and reliability of witness
Legislation Cited:	Australian Federal Police Act 1979 s 14 Evidence Act 2011 (ACT) ss 55, 56(2), 114, 116, 135, 137 and 138
Cases Cited:	Alexander v The Queen (1981) 145 CLR 395 Bayley v The Queen [2016] VSCA 160 Bulejcik v R (1996) 185 CLR 375 Conway v The Queen [2000] FCA 461 98 FCR 204 Davies and Cody v The King (1937) 57 CLR 170 Domican v The Queen (1992) 173 CLR 555 Eastman v The Queen (1997) 76 FCR 9 Festa v The Queen [2001] HCA 72; 208 CLR 593 IMM v The Queen [2016] HCA 14; 257 CLR 300 Knight v Brown [2004] ACTSC 35; 183 FLR 135 Pitkin v R [1995] HCA 30; 69 ALJR 612 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 R v Blick [2000] NSWCCA 61; 111 A Crim R 326 R v Dickman [2017] HCA 24; 91 ALJR 686 R v Jones and Harris (1989) 41 A Crim R 1 R v Maladinovic (1992) 109ACTR 11 R v Smith [1984] 1 NSWLR 462 R v Smith (1986) 7 NSWLR 444; 23 A Crim R 266 Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 Sio v The Queen [2016] HCA 32; 259 CLR 47
Parties:	The Queen (Crown) David Harold Eastman (Accused)
Representation:	Counsel Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms Line (Accused)
Solicitors Office of the ACT Director of Public Prosecution (Crown) ACT Legal Aid Office (Accused)
File Numbers:	SCC 111 of 1992SCC 111 of 1992

Kellam AJ:

Introduction

The defence submits that the evidence of eleven witnesses upon whom the prosecution seeks to rely in relation to the identification of the accused, his motor vehicle or his clothing should be excluded, principally because in each case the probative value of such evidence is outweighed by the danger of unfair prejudicial effect pursuant to s 137 of the Evidence Act 2011 (ACT) (‘the Act’). Furthermore, and in some circumstances, it is submitted that the evidence is inadmissible or should be excluded by operation of ss 55, 114, 135 and 138 of the Act and/or the common law discretion to exclude unfair evidence.

Legal principles

Section 55 of the…

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.

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Details

Case: [2018] ACTSC 11
Decision Date: 6 February 2018

CaseChat Overview and Summary

The case of R v Eastman (No 31) involved the accused, Eastman, facing criminal charges in an Australian court. The primary dispute centred on the admissibility of certain identification evidence presented by the prosecution. The court had to determine whether this evidence should be excluded under sections 56(2), 114, 135, 137, and 138 of the Evidence Act 2011 (ACT), as well as considering the common law rule to exclude unfair evidence. The core legal issue was whether the probative value of the identification evidence was outweighed by the unfairness to the accused.

The court's reasoning hinged on the interpretation and application of s 137 of the Act, which mandates that the court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The court referred to the principles established in IMM v The Queen, which clarified that a trial judge should assess the probative value of the evidence by taking it at its highest, assuming its reliability and credibility. The court noted that while the evidence should be assessed at its highest, the surrounding circumstances may indicate that its probative value is inherently low. The court concluded that the identification evidence in question, despite being taken at its highest, did not have sufficient probative value to outweigh the risk of unfairness to the accused.

The court found that the identification evidence should be excluded as it did not meet the threshold of relevance and probative value required under s 137 of the Act. The court ordered that the evidence be excluded from the trial to protect the fairness of the proceedings for the accused. This decision underscored the importance of carefully assessing the probative value of identification evidence, particularly in light of the potential for unfairness to the accused.

Orders

Orders of the court

See [238]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 137 of the Act provides that:137Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Both parties agree that IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’) is now the leading judgment on the operation and effect of ss 55 and 137 of the Act and the interplay between those provisions, and particularly the meaning of relevance and probative value. There is no dispute between the prosecution and the defence that the majority judgment in IMM stands for the principle that a trial judge takes the evidence at its highest and assumes its reliability and credibility for the purpose of assessing probative value under s 137 of the Act. In IMM the majority said at 312 [39]:The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. The majority said further at 314-5 [50]:....It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC (Heydon, "Is the Weight of Evidence Material to Its Admissibility?", (2014) 26 Current Issues in Criminal Justice 219 at 234) was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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