R v Eastman (No 37)
[2018] ACTSC 114
•2 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 37) |
Citation: | [2018] ACTSC 114 |
Hearing Date: | 30 April 2018 |
DecisionDate: | 2 May 2018 |
ReasonsDate: | 3 May 2018 |
Before: | Kellam AJ |
Decision: | 1. The evidence of John Sparkes and June Sparkes is admissible. 2. The evidence of other telephone calls made by the accused in January 1988 to the telephone numbers of persons advertising firearms for sale is admissible. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence in notices filed pursuant to s 67 Evidence Act 2011 (ACT) – evidence relied on by the prosecution admissible in rebuttal of assertion that accused searching for a weapon for self‑defence – evidence relevant pursuant to s 56(2) of the Evidence Act 2011 (ACT) –evidence not excluded pursuant to s 137 of the Evidence Act 2011 (ACT) as probative value not outweighed by danger of unfair prejudice to accused |
Legislation Cited: | Evidence Act 2011 (ACT) ss 56(2); 67 and 137 |
Cases Cited: | R v Eastman (No 21) [2017] ACTSC 255 R v Eastman (No 24) [2017] ACTSC 348 |
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(s): | SCC 111 of 1992 |
Kellam AJ:
The prosecution has filed notices pursuant to s 67 (‘s 67 notice/s’) of the Evidence Act 2011 (ACT) (the ‘Act’) in respect of evidence it seeks to lead in relation to various representations of John Sparkes and his wife, June Sparkes, both of whom gave evidence at the first trial but are now deceased.
The substance of the evidence sought to be led in respect of Mr Sparkes is that given by him at the trial on 17 July 1995 to the effect that his son placed an advertisement for a gun for sale in The Canberra Times newspaper on 30 January 1988. The advertisement listed Mr Sparkes’ home telephone number, being 811040, as the contact number. That telephone number was, at the time, an unlisted number. Mr Sparkes gave evidence that he knew nothing of the accused at the time and could give no other reason as to why the accused might have called his phone number.
The evidence in the s 67 notice relied upon by the prosecution in relation to Mrs Sparkes is, in essence, the same as the evidence relied on by the prosecution in relation to Mr Sparkes.
The defence objects to the above evidence being led.
In addition to the above evidence the prosecution, by its Amended Case Statement, has given notice that it intends to rely, as it did upon the first trial, upon a number of other telephone calls which the accused made to persons who were advertising the sale of firearms in January 1988.
By R v Eastman (No 21) [2017] ACTSC 255, I determined that the evidence referred to in the preceding paragraph is not admissible as tendency evidence. Furthermore, in R v Eastman (No 24) [2017] ACTSC 348, I ruled that some evidence of the accused having made enquiries about firearms, and in particular about a Ruger .22 rifle without a scope, is admissible as part of the prosecution case as coincidence evidence.
The defence argues that given that the incidents referred to in [5] above have been ruled as inadmissible for a tendency purpose, it is difficult to see how evidence of the accused making enquiries about firearms in January 1988 is relevant to a fact in issue concerning the murder of Mr Winchester. It is submitted that the evidence relates to events that are remote in time, occurred long before it can be said that the accused had any animus towards Mr Winchester and the evidence is not relevant to opportunity or motive.
In the alternative, the defence argues that any probative value of the evidence is low and that there is a risk that the jury would engage in tendency reasoning contrary to my ruling in that regard and that the jury may engage in propensity reasoning that the accused, being a person who made such enquiries, is the kind of person who would have purchased the firearm from Mr Klarenbeek. It is submitted that the leading of such evidence will detract from the real issues in the prosecution case, which is whether or not it can prove that the accused purchased the Klarenbeek rifle and whether that was the murder weapon.
It is submitted on behalf of the accused that the evidence of the January 1988 enquiries is inadmissible as being irrelevant pursuant to s 56(2) the Act, or in the alternative should be excluded pursuant to s 137 of the Act because its probative value is outweighed by the danger of unfair prejudice to the accused.
In response, the prosecution argues that the repeated attempts by the accused to buy a gun are relevant to motive. The number of enquiries and the period over which they occurred, it is submitted, demonstrates the seriousness of the desire on the part of the accused to buy a weapon, as well as demonstrating that it was not a passing whim.
The prosecution submits that the evidence is important in terms of timing, in that the telephone calls made within weeks of the letter to Ms Finke on 24 December 1987 demonstrate that what the accused wrote in that letter was not prompted by a temporary emotional outburst, but reflects his ongoing state of mind. Further, it is argued that the evidence is important in that it rebuts the assertion made previously by the accused that he was looking for a firearm for the purpose of self-defence from Mr Russo who had a firearm at the time. Furthermore it is submitted that the evidence that the accused was looking for a rifle at this time demonstrates the building anger of the accused and the link between his building anger regarding the Australian Public Service (‘APS’), the impediment to his re‑entry into the APS which would result from a conviction in the Russo matter, and the refusal of Mr Winchester to intervene, which is a highly important aspect of the prosecution case.
In relation to the argument advanced by the prosecution that the evidence of the accused making enquiries about the purchase of firearms in January 1988 is relevant to a rebuttal of the assertion made at the first trial by the accused that he was enquiring about firearms because of his fear of Mr Russo. The prosecution relies on a note made by Ms Sauverain on 12 January 1988 (and marked for identification as MFI 253 at the first trial, but not tendered). It appears that Ms Sauverain was associated with the Jerilderie Court complex, where both the accused and Mr Russo were at the time resident. In the note it states that the accused had telephoned Ms Sauverain on 12 January 1988 stating that Mr Russo had disposed of his shotgun. On the other hand the note records that Mr Russo had retained a truncheon. Thus counsel for the accused argues that reliance by the prosecution upon the evidence of the accused making enquiries about a firearm as rebuttal of the claim by the accused in relation to self‑defence has little weight. That might be so, but as submitted by the prosecution, it is on notice as to the way in which the accused deals with this issue and the prosecution is entitled to deal with the issue in its case. In the end, as the prosecution submits, it is a matter for the jury.
The defence advanced no argument in rebuttal of the prosecution submission that there is substantial probative value in terms of the building of anger and frustration in the mind of the accused as is revealed in the Finke letter of 24 December 1987and in his interest in the acquisition of firearms.
I reject the defence argument that the evidence is irrelevant. In my view it is clearly relevant to the prosecution case in relation to motive and to the build‑up of anger and resentment in the accused and upon which the prosecution relies. Further, it is not tendency evidence and the jury will be so directed, and the jury will be directed that the evidence is relevant only to the issue of motive as put by the prosecution. It is, as the prosecution submits, illogical to conclude that because there is evidence of the accused seeking to purchase firearms that the jury might assume that he is the kind of person who would buy the Klarenbeek Ruger. Furthermore, the argument that the evidence is effectively coincidence evidence is not convincing. It will be clear to the jury that the evidence which has been admitted as coincidence evidence specifically relates to one issue, that is the likelihood that it was the accused who bought a Ruger .22 rifle without a scope from Mr Klarenbeek. The directions concerning that evidence will specify clearly the enquiries which relate to that matter.
The evidence of Mr and Mrs Sparkes, as with the evidence of other telephone enquiries made by the accused in January 1988 about the purchase of firearms, is admissible.
Orders
The evidence of John Sparkes and June Sparkes is admissible.
The evidence of other telephone calls made by the accused in January 1988 to the telephone numbers of persons advertising firearms for sale is admissible.
| I certify that the preceding seventeen [17] 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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