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R v Eastman (No 32)

R v Eastman (No 32)

Case [2018] ACTSC 12 15 February 2018

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 32)
Citation:	[2018] ACTSC 12
Hearing Dates:	28-29 November 2017
DecisionDate:	15 February 2018
Before:	Kellam AJ
Decision:	1. The evidence of previous representations made by Mr Dennis Barbara at the first trial on 18 July 1995 is admissible pursuant to s 65(3) of the Evidence Act 2011 (ACT). 2. The evidence of Dr Dennis Roantree as to the words ‘The police should be taught a lesson’ is admissible. 3. The evidence of Dr Roantree as to the words ‘I should shoot the bastard’ is inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT).
Catchwords:	CRIMINAL LAW – EVIDENCE – Whether evidence of alleged threats made by accused admissible –- evidence given at earlier trial admissible pursuant to s 65(3) Evidence Act 2011 (ACT) - evidence excluded where danger of prejudice to accused outweighs probative value pursuant to s 137 of Evidence Act 2011 (ACT) –– factors relevant to balancing danger of prejudice and probative value in s 137 of Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 65(3), 67, 137 and 165 Evidence Act 1995 (Cth) s 137 Evidence Act 2008 (Vic) ss 65(2)(b), 65(3) and 137
Cases Cited:	Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 Bray (A Pseudonym) v R [2014] VSCA 276; 46 VR 623 Dupas v The Queen [2012] VSCA 328; 40 VR 182 IMM v The Queen [2016] HCA 14; 257 CLR 300 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Peterson (A Pseudonym) v R [2014] VSCA 111 R v Debresay (Ruling No 1) [2016] VSC 487 R v SJRC [2007] NSWCCA 142 R v Yates [2002] NSWCCA 520 The Queen v Duke (1979) 22 SASR 46; 1 A Crim R 39
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 L Line (Accused)
Solicitors ACT Director of Public Prosecution (Crown) ACT Legal Aid (Accused)
File Number:	SCC 111 of 1992

Kellam AJ:

The prosecution seeks to rely on the evidence of statements, said to be threats, allegedly made by the accused relating to Mr Winchester in the presence of Mr Dennis Barbara, then a solicitor acting for the accused and Dr Dennis Roantree, then a medical practitioner. Both gave evidence at the first trial of the accused. Mr Barbara gave evidence that the accused had told him that ‘I’ll kill Winchester and I’ll get the Ombudsman too’ (the ‘Barbara statement’). Dr Roantree gave evidence that the accused had said to him first ‘The police should be taught a lesson’ and then ‘I should shoot the bastard’ (the ‘Roantree statements’). The prosecution seeks to rely at the retrial, as it did at the first trial, upon the evidence of Mr Barbara and Dr Roantree as supporting both motive and tendency.
Mr Barbara…

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 32)

Details

AGLC: R v Eastman (No 32) [2018] ACTSC 12
Case: [2018] ACTSC 12
Decision Date: 15 February 2018

CaseChat Overview and Summary

The court was presented with an appeal by the respondent, Eastman, against the trial judge's decision to admit certain evidence during the trial. The respondent was convicted of various offences related to his involvement in a plot to kill a police officer. The court had to determine whether the trial judge had correctly admitted evidence of threats made by the respondent. This evidence was initially presented during a previous trial and was argued to be admissible under section 65(3) of the Evidence Act 2011 (ACT) but was excluded under section 137 of the same Act due to the potential prejudice it may cause to the respondent.

The primary legal issues involved the admissibility of evidence of threats made by the respondent, particularly whether the probative value of this evidence outweighed the danger of prejudice. The court had to consider the criteria outlined in section 137 of the Evidence Act 2011 (ACT) to determine if the evidence should be excluded. The court assessed the relevance of the evidence in proving a fact in issue and the potential impact it may have on the fairness of the trial.

The court concluded that the evidence of previous representations made by Mr Dennis Barbara and the words ‘The police should be taught a lesson’ were admissible as they met the criteria set out in section 65(3) of the Evidence Act 2011 (ACT). However, the evidence of the words ‘I should shoot the bastard’ was excluded under section 137 of the Act as the danger of prejudice to the respondent outweighed the probative value. The court found that the prejudicial effect of this evidence would likely undermine the fairness of the trial.

The court ordered that the evidence of previous representations made by Mr Dennis Barbara and the words ‘The police should be taught a lesson’ were admissible. However, the evidence of the words ‘I should shoot the bastard’ was inadmissible.

Orders

Orders of the court

1. The evidence of previous representations made by Mr Dennis Barbara at the first trial on 18 July 1995 is admissible pursuant to s 65(3) of the Evidence Act 2011 (ACT).

2. The evidence of Dr Dennis Roantree as to the words ‘The police should be taught a lesson’ is admissible.

3. The evidence of Dr Roantree as to the words ‘I should shoot the bastard’ is inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Eastman (No 32) [2018] ACTSC 12

Most Recent Citation

R v Eastman (No 34) [2018] ACTSC 68

Cases citing this decision · 3 of 3 shown

R v Eastman (No 40)
[2018] ACTSC 174

…R v Eastman (No 32) [2018] ACTSC 12 R v Taylor [2003] NSWCCA 194…
R v Eastman (No 36)
[2018] ACTSC 107 Para 1

…nce given by Mr Barbara at the first trial on 18 July 1995 has been ruled by me to be admissible pursuant to s 65(3) the Act (see R v Eastman (No 32) [2018] ACTSC 12). That ruling was made in relation to an Amended Notice of intention to adduce evidence of previous representations made by Mr Barbara filed by the p…
R v Eastman (No 34)
[2018] ACTSC 68 Para 7

…of the statement ‘I should shoot the bastard’ said to have been made to Dr Roantree by the accused is not admissible (see R v Eastman (No 32) [2018] ACTSC 12). Accordingly, the issue raised by the defence now relates only to Mr Barbara.…

View all 3 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Duke
[2020] NSWDC 341 Para 3

…isk is that the jury may be distracted from its proper role and give particular evidence more weight than it deserves. [See also The Queen v Duke (1979) 22 SASR 46, 47–48 (King CJ).] In the present case, the trial judge clearly assessed the probative value of the evidence. It cannot be contended that her conclusion…
R v Debresay (Ruling No 1)
[2016] VSC 487 Para 1

…re is no suggestion that the evidence of Dr Roantree is unreliable or lacks credibility. As stated by Forrest J in R v Debresay (Ruling No 1) [2016] VSC 487 at [14] when referring to the majority approach in IMM v The Queen [2016] HCA 14; 257 CLR 300: …. whilst a judge must eschew consideration of factors that ma…
IMM v The Queen
[2016] HCA 14 Para 6

…he evidence of Dr Roantree by the defence is an attack on its reliability and that this is not such an ‘extreme example such as the IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’) example’ and that the evidence of Dr Roantree is a matter for the jury, and not one where ‘a judge could usurp the jury function’.…
Bray (a Pseudonym) v The Queen
[2014] VSCA 276 Para 2

…pable of being the subject of cross-examination. A similar argument was considered by the Victorian Court of Appeal in Bray (A Pseudonym) v The Queen [2014] VSCA 276; 46 VR 623 (‘Bray’), which decision I should note was very properly brought to my attention by Mr Georgiou. In that case, which was a case where the…
Peterson (a pseudonym) v The Queen
[2014] VSCA 111 Para 5

…ial. In my view, the probative value of Mr Barbara’s evidence is high. As stated by the Victorian Court of Appeal in Peterson (A Pseudonym) v R [2014] VSCA 111 at [51]: When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury r…
Dupas v The Queen
[2012] VSCA 328 Para 3

…as open to the trial judge to rule, as she did, both in relation to s 137 of the Act, and in relation to the common law fairness discretion. In Dupas [2012] VSCA 328, 40 VR 182, 218 A Crim R 507] the Court considered the application of s 137. It held that the application of that section involves a series of steps:…
Aytugrul v The Queen
[2012] HCA 15 Para 3

…Likewise in Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [75] Heydon J considered that in deciding whether there is a danger that evidence may lead to a jury adopting an illegitimate form of reasoning, or giving the evidence undue weight, it is reasonable to have regard to whether appropriate directions ma…
Dupas v The Queen
[2010] HCA 20 Para 3

…ial judge to rule, as she did, both in relation to s 137 of the Act, and in relation to the common law fairness discretion. In Dupas [2012] VSCA 328, 40 VR 182, 218 A Crim R 507] the Court considered the application of s 137. It held that the application of that section involves a series of steps: first, an…
R v SJRC
[2007] NSWCCA 142 Para 1

…question of ambiguity or of competing views (each of which may be open) as to the meaning of the evidence such as that considered in R v SJRC [2007] NSWCCA 142. Nor is it a question of reliability or credibility. There is no suggestion that the evidence of Dr Roantree is unreliable or lacks credibility. As stated by…
R v Yates
[2002] NSWCCA 520 Para 2

…As to the defence argument that prejudice arises by reason of the evidence, the prosecution relies upon R v Yates [2002] NSWCCA 520, where Wood CJ, Hulme J and Buddin JJ said at [252]: Prejudice argues for exclusion only if there is a real risk of danger of it being unfair …. This may arise in a variety of ways, a t…
Papakosmas v The Queen
[1999] HCA 37 Para 3

…ice‘, the issue is not that the evidence may lead to conviction; rather the issue is whether the evidence may be misused [ Papakosmas v The Queen [1999] HCA 37, 196 CLR 297at 325 [91] per McHugh J]. The risk is that the jury may be distracted from its proper role and give particular evidence more weight than it…

Legislation cited in this decision · 3

Evidence Act 2011 (ACT)
137, 165, 65(3), 67 5 mentions (from Para 2)
Evidence Act 2008 (Vic)
137, 65(2)(b), 65(3) 4 mentions (from Para 2)
Evidence Act 1995 (Cth)
137 2 mentions (from Para 9)