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

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 38)
Citation:	[2018] ACTSC 124
Hearing Date:	30 April 2018
DecisionDate:	18 May 2018
Before:	Kellam AJ
Decision:	See [55]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence proposed to be led pursuant to the Evidence Act 2011 (ACT) s 67 notice ‑ whether evidence irrelevant and inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) – whether evidence should be excluded pursuant to s 137 of the EvidenceAct 2011 (ACT) because its probative value is outweighed by unfair prejudice to the accused – second‑hand hearsay not admissible pursuant to s 65(2) of the Evidence Act 2011 (ACT) – second‑hand hearsay is not an exception pursuant to s 78(a) of the Evidence Act 2011 (ACT) and is inadmissible pursuant to s 76 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT), ss 56(2), 76, 78, and 137
Cases Cited:	R v Eastman (No 34) [2018] ACTSC 68
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 submits that the evidence of Michael Frodyma, Maurice Kennedy, Phillip Bewley, Theresa Bewley, Peter Paramore, Alan Anforth and Helen Vick should not be admitted into evidence in the trial of the accused. In essence the objection to this evidence is that much of it is irrelevant and thus is inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) (the ‘Act’) and 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.

Michael Frodyma and Maurice Kennedy

Michael Frodyma and Maurice Kennedy both gave evidence at the first trial. Mr Kennedy is now deceased and the prosecution has filed a s 67 notice in respect of the evidence it seeks to lead in relation to him.

The prosecution amended case statement dated 21 August 2015 states that:

On 31 August 1987 Michael Frodyma, an employee of the Department of Finance, spoke with the accused regarding an application for an ‘act of grace’ payment which had been rejected by the Department. During the telephone call Mr Frodyma recalls the accused becoming increasingly angry, culminating in the accused stating that he “ought to come around with a baseball bat and knock [his] fucking head in”.

Mr Frodyma gave that evidence at the first trial (at trial transcript p 2320).

The s 67 notice filed in respect of Mr Kennedy sets out the substance of the previous representations of Mr Kennedy that are relied upon by the prosecution as being that in August 1987 he was working as Assistant Secretary of the Financial Administration Advisory Branch in the Department…

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 38)

Details

AGLC: R v Eastman (No 38) [2018] ACTSC 124
Case: [2018] ACTSC 124
Decision Date: 18 May 2018

CaseChat Overview and Summary

The case of R v Eastman (No 38) involved the accused, Eastman, facing criminal charges in the Magistrates Court of the Australian Capital Territory. The dispute centred around the admissibility of certain evidence proposed to be presented by the prosecution. The court was required to determine whether the evidence was irrelevant and thus inadmissible under section 56(2) of the Evidence Act 2011 (ACT), whether it should be excluded under section 137 of the same Act due to unfair prejudice to the accused, and if the evidence constituted second-hand hearsay which would be inadmissible under sections 65(2), 76, and 78(a) of the Evidence Act 2011 (ACT). The court's task was to carefully examine the nature of the evidence, its relevance, and the potential impact it may have on the fairness of the trial.

In considering the admissibility of the evidence, the court focused on the statutory provisions outlined in the Evidence Act 2011 (ACT). The primary concern was whether the evidence was relevant and, if so, whether its probative value was outweighed by the danger of unfair prejudice to the accused. The court also assessed whether the evidence in question was second-hand hearsay, which is generally inadmissible under the Act unless it falls within a specified exception. The court needed to establish whether the evidence was an exception to the hearsay rule and whether it should be admitted under section 78(a) of the Act. These legal issues required a detailed analysis of the evidence and its potential impact on the trial's fairness and outcome.

The court concluded that the evidence proposed by the prosecution was not admissible. The reasoning was that the evidence was largely irrelevant and did not meet the threshold for admissibility under section 56(2) of the Evidence Act 2011 (ACT). Additionally, the court found that the probative value of the evidence was significantly outweighed by the risk of unfair prejudice to the accused, warranting exclusion under section 137 of the Act. Furthermore, the evidence was deemed to be second-hand hearsay, which is not admissible under sections 65(2), 76, and 78(a) of the Act, as it did not fall within any of the exceptions provided. Consequently, the court ruled that the evidence should not be admitted in the trial.

The final orders of the court were that the evidence proposed by the prosecution was to be excluded from the trial. This decision was based on the grounds that the evidence was irrelevant, posed a significant risk of unfair prejudice to the accused, and constituted inadmissible second-hand hearsay. The exclusion of this evidence was critical to ensuring the fairness of the trial and protecting the rights of the accused.

Orders

Orders of the court

See [55]

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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