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R v Eastman (No 34)

R v Eastman (No 34)

Case [2018] ACTSC 68 15 March 2018

Admissibility of Evidence

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 34)
Citation:	[2018] ACTSC 68
Hearing Dates:	28-29 November 2017
DecisionDate:	15 March 2018
Before:	Kellam AJ
Decision:	The evidence relied on by the prosecution and referred to in its Tendency Notice as incidents numbered 2, 4, 7, 8, 13, 15, 16, 22, 23, 24, 25 and 26 are not admissible as evidence of Tendency 4 as pleaded by the prosecution.
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of tendency evidence – Tendency evidence inadmissible unless it has significant probative value pursuant to s 97(1)(b) of the Evidence Act 2011 (ACT) – tendency evidence presented by prosecution is inadmissible unless its probative value substantially outweighs the prejudicial effect it may have on the accused pursuant to s 101(2) of the Evidence Act 2011 (ACT)– factors relevant to assessing probative value – factors relevant in balancing probative value and prejudicial effect – tendency evidence does not relate only to the credibility of the witness and thus not excluded pursuant to s 94(1) of the Evidence Act 2011 (ACT) – tendency evidence inadmissible because either it is not significantly probative or the probative value does not substantially outweigh prejudicial effect – Admissibility of evidence pursuant to s 65(2)(b) and or s 65(2)(c) of the Evidence Act 2011( ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 32, 65(2)(b), 94, 97, 101 Part 1 Dictionary meaning of ‘credibility of a witness’ Crimes Act 1900 (ACT) s 32
Cases Cited:	Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Herald and Weekly Times v McGregor (1928) 41 CLR 254 Hughes v R [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v AH (1997) 42 NSWLR 702 R v Beserick (1993) 30 NSWLR 510 R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21 R v Eastman (No 21) [2017] ACTSC 255 R v Eastman (No 23) [2017] ACTSC 281 R v Eastman (No 32) [2018] ACTSC 12 R v Ellis [2003] NSWCCA 319 R v Gregory (No 2) [2009] VSC 509 R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466 R v SK, SK v R [2011] NSWCCA 292 RH v The Queen [2014] NSWCCA 71; 241 A Crim R 1 Thompson v The King [1918] AC 221 Williams v R [2000] FCA 1868; 119 A Crim R 490
Texts Cited:	Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters,12th ed, 2016)
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 Office (Accused)
File Number:	SCC 111 of 1992

Kellam…

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 34)

Details

AGLC: R v Eastman (No 34) [2018] ACTSC 68
Case: [2018] ACTSC 68
Decision Date: 15 March 2018

CaseChat Overview and Summary

The matter before the court was a criminal prosecution against the defendant, Eastman, who was charged with various offences. The prosecution sought to introduce certain tendency evidence to prove the defendant's propensity to commit the crimes for which he was being tried. The case was heard in the Supreme Court of the Australian Capital Territory. The legal issues before the court were primarily concerned with the admissibility of the proposed tendency evidence under the Evidence Act 2011 (ACT).

The court had to determine whether the proposed evidence had significant probative value as required by section 97(1)(b) of the Act, and whether the probative value of the evidence substantially outweighed its prejudicial effect under section 101(2) of the Act. The court considered the relevant factors for assessing probative value, including the similarity of the past conduct to the current charges and the temporal proximity of the events. The court also considered factors relevant to balancing probative value and prejudicial effect, such as the potential to confuse the issues or mislead the jury. The court found that the tendency evidence did not relate solely to the credibility of the witness and thus was not excluded under section 94(1) of the Act.

After weighing the probative value against the prejudicial effect, the court concluded that the evidence was either not significantly probative or that its probative value did not substantially outweigh its prejudicial effect. Consequently, the court ruled that the evidence relied on by the prosecution and referred to in its Tendency Notice as incidents numbered 2, 4, 7, 8, 13, 15, 16, 22, 23, 24, 25 and 26 were not admissible as evidence of Tendency 4 as pleaded by the prosecution. The court's decision effectively barred the prosecution from presenting this evidence in its case against Eastman.

Orders

Orders of the court

The evidence relied on by the prosecution and referred to in its Tendency Notice as incidents numbered 2, 4, 7, 8, 13, 15, 16, 22, 23, 24, 25 and 26 are not admissible as evidence of Tendency 4 as pleaded by the prosecution.

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 34) [2018] ACTSC 68

Most Recent Citation

R v Eastman (No 38) [2018] ACTSC 124

Cases citing this decision · 1 of 1 shown

R v Eastman (No 38)
[2018] ACTSC 124 Para 1

…The substance of the evidence to be given by Mr and Mrs Bewley is summarised in R v Eastman (No 34) [2018] ACTSC 68 (‘R v Eastman (No 34)’) at [58]. The defence accepts that parts of the evidence of Mr and Mrs Bewley are relevant as being demonstrative of the desire of the accused to re-enter the APS. However, it…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

R v AH
[2018] NSWSC 973 Para 10

…(2) of the Act is on the prosecution to establish that the probative value of the evidence substantially outweighs any prejudicial effect (see R v AH (1997) 42 NSWLR 702 (Hunt CJ at CL, Ireland and Levine JJ per Ireland J at 709). As the High Court in Hughes v R [2017] HCA 20; 344 ALR 187 at [17] (per Keifel CJ, Bell,…
R v Eastman (No 32)
[2018] ACTSC 12 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.…
R v Eastman (No 23)
[2017] ACTSC 281 Para 2

…I have dealt already with the evidence of the ‘Finke letters’ in R v Eastman (No 23) [2017] ACTSC 281. Of particular relevance to the issue now before me I ruled that the words ‘I want to kill the neighbour, his friends, and the bastard police’ referred to above were admissible. However, I ruled that the following…
R v Eastman (No 21)
[2017] ACTSC 255 Para 1

…nce (the ‘Tendency Notice’) pursuant to s 97 of the Evidence Act 2011 (ACT) (‘the Act’). On 7 September 2017 I ruled (see R v Eastman (No 21) [2017] ACTSC 255) that the fourth of five tendencies sought to be relied upon by the prosecution is admissible. I ruled the remaining four tendencies to be defective.…
Hughes v The Queen
[2017] HCA 20 Para 10

…s any prejudicial effect (see R v AH (1997) 42 NSWLR 702 (Hunt CJ at CL, Ireland and Levine JJ per Ireland J at 709). As the High Court in Hughes v R [2017] HCA 20; 344 ALR 187 at [17] (per Keifel CJ, Bell, Keane and Edelman JJ) said: The reception of tendency evidence in a criminal trial may occasion prejudice…
IMM v The Queen
[2016] HCA 14 Para 17

…ssions of the defence in this regard, it is clear that tendency evidence can be used to support the credibility of other evidence. In IMM v The Queen [2016] HCA 14; 257 CLR 300 French CJ, Kiefel, Bell and Keane JJ stated at [62]: In a case of this kind, the probative value of this evidence lies in its capacity t…
Elomar v R
[2014] NSWCCA 303 Para 20

…In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359] the NSW Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) stated: Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the re…
R v Jacobson (Ruling No 2)
[2014] VSC 368 Para 9

…In R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466 at [74] and in relation to a case involving allegations of conspiracy to manipulate the price of securities contrary to the Corporations Act 2001 (Cth) Kaye J stated: In general, some caution is exercised in admitting evidence as to subsequent events.…
RH v R
[2014] NSWCCA 71 Para 2

…Thompson v The King [1918] AC 221). Subsequent decisions directly related to tendency reasoning support that general proposition. In RH v The Queen [2014] NSWCCA 71; 241 A Crim R 1, Ward JA observed at [124] that the prosecution case was in effect: …. that the tendency evidence demonstrated a pattern of behaviour o…
R v SK
[2011] NSWCCA 292 Para 4

…In R v SK, SK v R [2011] NSWCCA 292 the issue of a temporal gap between the tendency incidents and the date of the commission of the charged offence was considered. In that case nineteen counts of sexual offences were alleged against four complainants (WS, DiS, DaS and KD). Two had occurred between 1980 and 2003. Th…
R v Gregory (No 2)
[2009] VSC 509 Para 8

…In R v Gregory (No 2) [2009] VSC 509 at [81], Whelan J (as he then was) in a case involving charges of fraud said: The authorities suggest that it is often “safer”, and more natural or logical, to reason prospectively, and that subsequent acts must therefore be used with caution.…
Gardiner v R
[2006] NSWCCA 190 Para 22

…the threat directed towards Mr Winchester by the accused, it is not related to the credibility of Mr Barbara. As stated by Simpson J in Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124]: Underlying s97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particul…
R v Cakovski
[2004] NSWCCA 280 Para 3

…As stated by Hulme J in R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21 at [56], in an admittedly different context, ‘threats of killing another human … are … extreme or unusual’. In my view the evidence does have probative value notwithstanding the remoteness in time from the date of the murder. The probative value…
R v Ellis
[2003] NSWCCA 319 Para 6

…e conducted only on the facts of each case. It requires the Court to make a judgment rather than exercise a discretion (see Spigelman CJ in R v Ellis [2003] NSWCCA 319 at [95]). Section 101(2) sets out a threshold which is different from s 97 of the Act for the admission of tendency evidence in criminal proceedings.…
Williams v The Queen
[2000] FCA 1868 Para 2

…Turning to the Court Information document, I agree that it does not meet the temporal requirements of Williams v R [2000] FCA 1868; 119 A Crim R 490 so as to comply with s 65(2)(b) of the Act. Accordingly the question to be considered is whether the representation was made in circumstances that make it highly prob…
Herald and Weekly Times Limited v McGregor
[1928] HCA 36 Para 2

…ct may be relevant in consideration of motive, or a state of mind generally, as existing at an earlier time (see Herald and Weekly Times v McGregor (1928) 41 CLR 254 at 265 and Thompson v The King [1918] AC 221). Subsequent decisions directly related to tendency reasoning support that general proposition. In RH v Th…
[1918] AC 221
[1918] AC 221 Para 2

…a state of mind generally, as existing at an earlier time (see Herald and Weekly Times v McGregor (1928) 41 CLR 254 at 265 and Thompson v The King [1918] AC 221). Subsequent decisions directly related to tendency reasoning support that general proposition. In RH v The Queen [2014] NSWCCA 71; 241 A Crim R 1, War…

Legislation cited in this decision · 3

Evidence Act 2011 (ACT)
101, 32, 65(2)(b), 94, 97 6 mentions (from Para 1)
Crimes Act 1900 (ACT)
32 2 mentions (from Para 7)
Corporations Act 2001 (Cth)
1 mention (from Para 9)