R v Eastman (No 36)
[2018] ACTSC 107
•2 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 36) |
Citation: | [2018] ACTSC 107 |
Hearing Dates: | 27-28 March 2018 |
DecisionDate: | 2 May 2018 |
ReasonsDate: | 3 May 2018 |
Before: | Kellam AJ |
Decision: | See [31]–[32] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence contained in notices filed by the defence pursuant s 67 relying on s 65(8) of the Evidence Act 2011 (ACT) – evidence that does not substantially affect a witness’ credit is inadmissible pursuant to s 103(1) of the Evidence Act 2011 (ACT) – surrounding circumstances are relevant to the probative value of a representation – where it is not clear that a representation is based on actual knowledge but may be based on second-hand hearsay or opinion is inadmissible – evidence that is very general may not be relevant to a fact in issue and therefore is inadmissible |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65(8), 67 and 103 |
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 AJ:
The defence has filed notices pursuant to s 67 of the Evidence Act 2011 (ACT) (the ‘Act’) in respect of representations made by Dennis Barbara and Glenn Jolly. The prosecution objects to the defence leading in evidence the representations in question.
Dennis Barbara
Dennis Barbara is deceased. It is appropriate at this point to observe that the evidence 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 prosecution on 17 March 2017.
On 16 March 2018 the defence filed and served pursuant to s 67 of the Act a Revised Notice relying on s 65(8) of its intention to adduce evidence of previous representations made by Mr Barbara (the ‘Revised notice’). The prosecution objects to the defence leading the evidence referred to in the Revised notice.
Section 65(8) of the Act is as follows:
65 Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(8)The hearsay rule does not apply to—
(a)evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
NoteSection 67 imposes notice requirements relating to this subsection.
The substance of the evidence of the previous representations that the defence intends to adduce is set out in the Revised notice in the following terms –
(1)That on 11 January 1994 Mr Barbara said that Mr Ninness "had verballed him", and that Mr Ninness has prepared a statement for the Inquest in which Mr Ninness alleged that Mr Barbara told him everything and in fact had quotations of what was allegedly said between Mr Ninness and Mr Barbara. That was not what had happened and it was false;
(2)That on 27 January 1994 Mr Barbara said that he remembers it was late November or early December that Eastman was in his office and lost his temper and flew off the handle. His memory of the conversation was that Eastman said "I'll get Winchester"; and
(3)That on 20 September 1994 Mr Barbara repeated that Mr Ninness had verballed him in Mr Ninness' statement. Mr Barbara said that he refused to answer any questions and he knew was [sic] that all these answers that were alleged to have been said by him were being used at the inquest. He said that Mr Ninness was trying to pressure him. Mr Barbara said that he remembers saying to Mr Ninness, "I'm not going to talk to you and you know what action you have to take". He said that he remembers that Ninness left in a huff and a puff.
The first representation upon which the defence seeks to rely is contained in a typed ‘memo to file’ dated 11 January 1994. It would appear that the memo was written by a John Ibbotson of the office of the Director of Public Prosecutions (‘DPP’) and records his understanding of things said to him in a telephone conversation had with Mr Barbara on 11 January 1994.
The second representation upon which the defence seeks to rely is also contained in a typed document headed ‘memo to file’ dated 27 January 1994. The memo records that Mr Barbara met with the then prosecutor, Mr Adams QC, and one Jennifer Woodward of the office of the DPP. Presumably the memo was prepared by Ms Woodward.
The third representation is likewise contained in a typed ‘memo to file’ dated 20 September 1994 apparently prepared by Ms Woodward. It is apparent from a reading of the document that in addition to Ms Woodward, Mr Barbara and Mr Adams were present at the meeting.
The prosecution objects to those parts of the three memos that contain a summary of what was said, rather than a representation that was attributed to Mr Barbara. The prosecution concedes that one phrase contained in the memo of 27 January 1994 which is in quotation marks, namely ‘I’ll get Winchester’, does appear to be a representation made by Mr Barbara. However, it is submitted on behalf of the prosecution that the circumstances under which the representation was made requires consideration in terms of both the relevance and the probative value of the representation. In that regard it is submitted that it is relevant that the representation in question is recorded in a memo made sixteen days after the first memo of 11 January 1994 in which it was recorded that Mr Barbara felt ‘quite ill’, and that he was still having operations in relation to injuries that he had sustained in a car accident, and that he had ‘a problem with painkillers’. The 11 January 1994 memo also records that Mr Barbara stated that his memory had not been good, although it was improving.
Furthermore, the prosecution relies upon the fact that the memo of 27 January 1994 also records that Mr Barbara stated that ‘his recollection was that he was in no doubt at the Inquest that Eastman had said that he would kill Winchester’. In this regard it is submitted that at the time of making the representation that the accused had said ‘I’ll get Winchester’ it is apparent that Mr Barbara had not ‘read his material’, as it was noted that a further conference would be arranged after he had had an opportunity to do so. Thus it is contended that the representation in question reflects Mr Barbara’s recollection some five years after the threat was made and in circumstances whereby he had not had an opportunity to refresh his memory from his earlier statements
The prosecution submits that the representation that Mr Barbara said that the accused said ‘I’ll get Winchester’ is prejudicial to the prosecution ‘as it creates doubt about the words used by Mr Barbara where there is no doubt’. The defence contests this proposition arguing that there is doubt about the words said by the accused to Mr Barbara. It is submitted, as has been previously argued, that at trial there will be an issue about the ‘mental gymnastics’ undertaken by Mr Barbara in relation to his assertion that the accused said ‘I’ll kill Winchester’ and ‘I’ll get the Ombudsman too’.
Furthermore the defence submits that the relevance of the representation made at the prosecution conference on 27 January 1994, that Mr Barbara remembered the accused saying ‘I’ll get Winchester’, is that it goes to his recollection of the incident after he had previously accepted that he’d gone through a process of ‘mental gymnastics’.
In my view the statement in question that is in quotation marks and that is referred to in the notes of the conference of 27 January 1994, is relevant and admissible. That said, I accept that there is weight in the prosecution argument that the surrounding circumstances when the statement in question was made are relevant to the probative value of the statement and for that reason it is apparent that the matters referred to in the memo of 11 January 1994 in relation to those circumstances are also admissible.
I turn now to the issue of whether or not the representations contained in the memos of 11 January 1994 and 20 September 1994 are admissible. The accused seeks to rely upon the representations said to have been made by Mr Barbara to the effect that Mr Ninness had prepared a statement for the Inquest which contained statements allegedly made by Mr Barbara, but which he denied having made. In this regard the defence in its written submissions dated 27 March 2018 argues that the ‘allegation of Mr Barbara of having been "verballed" by Mr Ninness is a significant matter’.
The prosecution submits that neither of the representations of 11 January 1994 nor 20 September 1994 should be admitted into evidence. The first matter relied upon by the prosecution is that the representations in question are a summary of things said to have been said by Mr Barbara rather than direct quotations. It is submitted that the representations are not relevant to any fact in issue and relate only to the credit of Mr Ninness and are thus inadmissible. Furthermore it is submitted on behalf of the prosecution that the prosecution is likely to suffer unfair prejudice by reason of tarnishing the credit of Mr Ninness and calling into question the evidence of Mr Barbara.
In response the defence refers to the fact that a statement made by Mr Ninness and produced at the inquest contained verbatim quotes attributed to Mr Barbara. The cross‑examination of Mr Ninness on 12 September 1989 by Mr Harper, who was at the time acting for Mr Barbara, made it clear that Mr Ninness had had a conversation with Mr Barbara on 7 February 1989, but that the conversation was not recorded and no contemporaneous notes were made of the conversation although ‘rough notes’ of the conversation were later made by Mr Ninness after he returned to the police station. The cross‑examination of Mr Ninness by Mr Harper, and by Mr Donald acting on behalf of the accused, took place in the context of Mr Barbara objecting to giving evidence at the Coronial Inquest on the grounds of client confidentiality. Mr Donald on behalf of the accused made it clear that client confidentiality was not waived by his client. The Coroner later ruled that the matters that were the subject of Mr Barbara’s evidence were not protected by legal professional privilege. It was put to Mr Ninness by Mr Harper, who appeared for Mr Barbara, that certain things that appeared in Mr Ninness’ statement were not precise quotations. Mr Ninness had made a note that he had asked Mr Barbara the following question:
Can you tell me on the basis of that conversation if he mentioned Mr Winchester in the threat?
Mr Ninness’ notes record that Mr Barbara had said that the accused ‘had become quite heated and agitated and made the threat’.
Mr Harper, in questioning Mr Ninness, accepted that words of that nature had been said, but put it to Mr Ninness that rather than using the word ‘threat’ Mr Barbara had said ‘and then said certain things’. Mr Ninness agreed that the notes were not verbatim but were made to the best of his recollection after he had discussed with Mr McQuillen the conversation he had had with Mr Barbara. Furthermore Mr Ninness conceded that he would agree that there were matters of detail that he could get wrong. It should be observed that although Mr Harper suggested to Mr Ninness that his notes were in error, there was no suggestion put to Mr Ninness that he had ‘verballed’ Mr Barbara.
I conclude that the notes contained in the memo to file dated 11 January 1994 and in the memo to file dated 20 September 1994 relating to the allegation that Mr Ninness had ‘verballed’ Mr Barbara are not admissible. First, the notes are not notes of what was actually said by Mr Barbara. The note of 11 January 1994 itself states that Mr Barbara ‘outlined’ the allegations. It does not purport to be a verbatim record of what Mr Barbara said. Secondly, the note is inconsistent with what was put to Mr Ninness at the Coronial Inquest by counsel for Mr Barbara. The note of 11 January 1994 records that Mr Barbara had told Mr Ninness that the conversations he had with the accused were subject to client privilege and that ‘he would not be saying anything’ until the accused waived that privilege. It is obvious from the cross‑examination of Mr Barbara at the Coronial Inquest, that Mr Barbara at that time apparently agreed that he had told Mr Ninness a number of things, including that in the course of a consultation the accused had become ‘heated and agitated’ and that at the time the accused had said ‘certain things’. It may well be that Mr Barbara had felt that he had said more than he should have to Mr Ninness. It should be observed that Mr Ninness recorded that at the end of the initial conversation, arrangements were made for a statement to be ‘obtained from Mr Barbara at 10 am Saturday 9 September after Mr Barbara would have obtained further legal advice’. No such statement ever came into existence. It is quite possible that what Mr Barbara later said, to the effect that he had told Mr Ninness nothing, which is clearly not the fact, was in effect justification for a concern, which he clearly had, that to say anything would be in breach of his professional obligation to the accused. None of this can now be explored with Mr Barbara.
Thirdly, it appears clear that the representations in question do not relate to any facts in issue. The prosecution cannot rely upon the evidence of Mr Ninness regarding his conversation with Mr Barbara. Accordingly, the representations are only relevant to the credit of Mr Ninness. Taking into account the matters referred to in the preceding paragraph, I consider that the evidence in question could not, by itself, substantially affect the assessment of Mr Ninness’ credibility and thus it is not saved by s 103(1) of the Act.
Finally, I consider that the evidence sought to be relied upon by the defence as to the alleged ‘verballing’ by Mr Ninness does have the capacity to unfairly prejudice the prosecution. In circumstances where the statements made by Mr Barbara are incapable of being tested, and in circumstances whereby Mr Barbara’s statement made in 1994, that he refused to answer any question, is inconsistent with what his own counsel put to Mr Ninness at the much earlier Coronial Inquest, I am of the view that the jury could, notwithstanding any direction to the contrary, misuse the inflammatory word ‘verballed’ in a manner that is not open on the evidence.
Accordingly the orders I propose to make in relation to the Revised notice filed pursuant to s 67 of the Act by the defence and relating to Dennis Barbara are as follows:
(a)that subject to the following order, the representations contained in the DPP memos to file dated 11 January and 20 September 1994 are not admissible; and
(b)the representations contained in the DPP memo to file dated 27 January 1994 of Mr Barbara as to the statement said to have been made by the accused as being ‘I’ll get Winchester’ is admissible, as is such other material contained in that memo and the memo dated 11 January 1994 as is relevant to the surrounding circumstances at the time of making the representation, including the health of Mr Barbara.
Glenn Laurence Jolly
The substance of the evidence of the previous representations that the defence seeks to adduce are that Mr Jolly was a police officer who was seconded to the Australian Bureau of Criminal Intelligence (‘ABCI’) in 1982 and that he was the project manager of an intelligence project code-named ‘Alpha’.
(a)Alpha focused on organised crime involving persons of Calabrian descent and the Indian hemp industry (representation (1)).
(b)Mr Jolly met Mr Winchester in 1982 and was told about an informant being used to gather information about Indian hemp plantations (representation (2)).
(c)The plantations were managed by a national criminal group involving persons from different states and territories (representation (3)).
(d)There was ample information that the group was violent (representation (4)).
(e)The plants were valued at approximately $1,000 each (representation (5)).
(f)The criminal group flourished throughout Australia (representation (6)).
The representations referred to above were made by Mr Jolly in a signed, undated statement made at an unknown location. The basis upon which it is alleged that Mr Jolly is not available to testify about the facts to be proved is that Mr Jolly is unable to be located.
The prosecution contends that none of the representations in the s 67 notice relating to Mr Jolly are relevant to a fact in issue. It is said that apart from his dealings with Mr Winchester regarding the use of an informant, evidence of which is available elsewhere, Mr Jolly’s evidence is based upon opinion. In addition, it is submitted that Mr Jolly’s statement was ‘likely to have been prepared for the inquest’ given that the bulk of the statement comments on evidence given by others. It is submitted that if Mr Jolly’s representations are admitted into evidence, that other evidence would need to be admitted for the purpose of context. In addition it is submitted that the notice contains impermissible second‑hand hearsay regarding Mr Jolly’s interaction with Mr Winchester. It is submitted that the evidence of Mr Jolly would be unfairly prejudicial in that there is a risk of evidence being put to the jury that may lead them to draw a link between mafia involvement in the Bungendore crops, evidence of violence, and the murder of Mr Winchester, without considering whether there is sufficient evidence to establish such a link.
The defence rejects the prosecution’s submission and argues that representation (2), which is to the effect that Mr Winchester met Mr Jolly in 1982 and was told that an informant was being used to gather information about an Indian hemp plantation, is relevant to understand the existence of the Bungendore plantations. In my view the representation is marginally relevant and is admissible.
It is submitted on behalf of the defence that representation (3), which is to the effect that the ‘plantations were managed by a national criminal group, involving persons from different states and territories’, is relevant in that it demonstrates that in the 1980s the mafia was a national group with an influence that spanned Australia. It is submitted that the representation as to the group’s large sphere of criminal influence is relevant as it suggests the group’s resources and inferentially its capacity not only to commit serious crime, but also to successfully escape the crime scene, permanently dispose of a murder weapon, and escape prosecution by successfully concealing its involvement in the crime for many years. In my view the extension placed upon representation (3) by the defence is unwarranted and the representation is so broad and meaningless that it is irrelevant. Furthermore it is far from obvious as to whether or not the representation is based upon Mr Jolly’s actual knowledge, or upon hearsay or opinion.
As for representation (4), being that there was ‘ample information that the group was violent’, it is submitted by the defence that this demonstrates that the criminal group was capable of killing Mr Winchester because it was, by nature, a violent crime group. The assertion is so wide that it has little meaning in my view. I reject the assertion that the representation set out in (4) can be relevant to drawing such a conclusion. Likewise, as with representation (3), it is far from clear as to whether or not the representation in question is based upon Mr Jolly’s actual knowledge, or upon hearsay or opinion.
Representation (5) is to the effect that marijuana ‘plants were valued at approximately $1,000 each’ at the time and it is submitted that using this value allows the jury to better appreciate the motive of the group to kill Mr Winchester. Whilst I accept that Mr Jolly’s opinion about this is relevant to the issues which will be before the jury, I consider it highly likely that the evidence of the value of marijuana plants will be otherwise available.
Finally, representation (6) that the ‘criminal group flourished throughout Australia’ is, like representation (4), of such a broad‑brush and general nature that it is irrelevant to any fact in issue.
Accordingly I rule that with the exception of representations (1) and (5) the representations contained in the s 67 notice relating to Glenn Jolly are inadmissible.
Orders
In relation to the Revised notice filed pursuant to s 67 of the Act by the defence and relating to Dennis Barbara:
(a)that subject to the following order the representations contained in the DPP memo to file dated 11 January and DPP memo to file dated 20 September 1994 are not admissible; and
(b)the representation of Mr Barbara contained in the DPP memo to file dated 27 January 1994 as to the statement said to have been made by the accused as being ‘I’ll get Winchester’ is admissible, as is such other material contained in that memo and in the memo of 11 January 1994 as is relevant to the surrounding circumstances at the time of making the representation, including the health of Mr Barbara.
With the exception of representations (1), (2) and (5) the representations contained in the notice filed by the defence pursuant to s 67 of the Act relating to Glenn Jolly are inadmissible.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 3 May 2018 |
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