R v Eastman (No 34)

Case [2018] ACTSC 68


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…

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

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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