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 |
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…
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CaseChat Overview and Summary
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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