R v Eastman (No 36)

[2018] ACTSC 107

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:

1. 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

1. 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.

1. 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.

1. 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…