R v Eastman (No 39) - [2018] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 39)
Citation:	[2018] ACTSC 171
Hearing Dates:	27 March 2018 – 28 March 2018; 5 April 2018; further written submissions filed by defence on 16 May 2018 and by the prosecution in response on 18 May 2018
DecisionDate:	14 June 2018
Before:	Kellam AJ
Decision:	See [18] – [19]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence – objection by prosecution to evidence in defence’s 67 notice served pursuant to s 65(8) of the Evidence Act 2011 (ACT) – evidence in notice speculative, irrelevant and therefore inadmissible
Legislation Cited:	Evidence Act 2011 (ACT) ss 65(8) and 67
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 Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 111 of 1992

KELLAM AJ:

Defence s 67 notices

The defence has filed a notice pursuant to s 67 of the Evidence Act 2011 (ACT) (‘the Act’) dated 6 February 2018 relating to Joan Margaret Hudson. The prosecution objects to the defence leading the evidence referred to in the notice.

Section 65(8) of the Act is as follows:
S 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.
The defence seeks to rely upon previous representations made by Joan Margaret Hudson who is now deceased. Mrs Hudson made a statement to police on 5 September 1989. She stated that and her husband were friends of Mr and Mrs Winchester. On Friday, 6 January 1989 she and her husband, and Mr and Mrs Winchester, attended at the Italian Club in Forrest. While they were seated for dinner, Mrs Hudson saw a male person walk past the table and look at Mr Winchester. She observed this to take place four times. Subsequently she saw the same man walk past and then return to the table at which they were seated and lean down to speak to Mr Winchester who leaned‑in to hear the man. The conversation lasted around thirty to forty seconds after which the man left the club. After the man left, Mr Winchester turned to Mrs Hudson and said “Did you get a good look at that bastard?” to which she replied that she had. Mrs Hudson stated that Mr Winchester then said “Keep…

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.

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Details

Case: [2018] ACTSC 171
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case of R v Eastman (No 39) involved the defendant, Eastman, who was subject to a prosecution in the Supreme Court of the Australian Capital Territory. The dispute centred on the admissibility of specific evidence presented by the defence under section 65(8) of the Evidence Act 2011 (ACT). The prosecution objected to the evidence, asserting that it was speculative and irrelevant, thus deeming it inadmissible under the statutory provisions. The court was tasked with determining whether the evidence met the criteria for admissibility under the law.

The central legal issue before the court was whether the evidence provided by the defence complied with the requirements of section 65(8) of the Evidence Act 2011 (ACT). This section allows for the disclosure of evidence that is not in the possession, power, or control of the party intending to adduce it, provided it is relevant to an issue in the case. The court had to consider the nature and relevance of the evidence, assessing whether it was speculative and therefore should be excluded from consideration.

In its reasoning, the court examined the statutory requirements and the nature of the evidence presented. The court held that the evidence provided by the defence was speculative and did not meet the standard of relevance required by the statute. Consequently, the court ruled that the evidence was inadmissible. The court emphasised that for evidence to be admissible under section 65(8), it must be both relevant and not speculative. Given the speculative nature of the evidence, the court found it did not meet these criteria and thus excluded it from the trial.

As a result of the court's determination, the evidence provided by the defence under section 65(8) of the Evidence Act 2011 (ACT) was not admitted. The court's decision was grounded in the statutory requirements for admissibility, which the evidence in question failed to satisfy. The final orders were made consistent with the court's findings, ensuring that only relevant and admissible evidence was considered in the proceedings against Eastman.

Orders

Orders of the court

See [18] – [19]

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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