R v Eastman (No 39)
[2018] ACTSC 171
•14 June 2018
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 that picture in your mind, I will get the mongrel bastards” and as he made that comment, both of his fists were clenched and he was tapping them on the table in front of him, and he was obviously angry.
Mrs Hudson gave to police a description of the man “as about 5'8" tall, medium build, trim, walking upright and distinguished, steely coloured hair with a high forehead, around 50 years old and of Italian descent”.
Prosecution’s oral submissions
The prosecution submits that the representations of Mrs Hudson contained in the notice are irrelevant. It argues that the fact that an Italian male spoke to Mr Winchester a few days before the murder and that Mr Winchester was allegedly unhappy about whatever it was that he said, and said that he would get the “mongrel bastards” is irrelevant to any issue in the trial. It is submitted on behalf of the prosecution that the fact that Mr Winchester was approached by an apparently Italian man at the Italo-Australian Club is of no moment. There is no evidence about who the man was and the defence submission, that the evidence that the approach by the man to Mr Winchester is somehow relevant to a fact in issue in this case, calls for speculation. The prosecution submits that the evidence that Mr Winchester said he would “get the mongrel bastards” could have related to anything, and it cannot be assumed that the man was in any way involved with the Calabrian Mafia. It is submitted that it would be irrational and impermissible to assume that because the man in question was of apparently Italian descent he had something to do with the Mafia.
Furthermore the prosecution submits that the representations said to have been made by Mr Winchester to Mrs Hudson are impermissible second‑hand hearsay. Finally, it is submitted that the Mrs Hudson’s representations are unfairly prejudicial to the prosecution. The prosecution submits that the fact that an Italian man spoke to Mr Winchester in an Italo-Australian Club only days before the murder, when the accused is arguing that Mr Winchester was murdered by the Mafia, is likely either to be given too much weight by the jury or to be misused by the jury to support a link between the Mafia and the murder notwithstanding that the representations, even taken at their highest, do not suggest that there is any connection.
Defence’s oral submissions
In response the defence submits that the incident at the Italo-Australian Club on 6 January 1989 is relevant as a circumstantial strand of the defence alternative hypothesis and that the statement of Mrs Hudson demonstrates that she had a detailed recollection of the incident, including of the appearance of the man who spoke to Mr Winchester, his precise movements and the demeanour of Mr Winchester. It is submitted that there is evidence that the Italo-Australian Club had been frequented by members of the Bungendore Eleven, the group that on the defence case had a motive to kill Mr Winchester.
The evidence that Mr Winchester said “I will get the mongrel bastards” is not being relied upon by the defence to prove the asserted fact, but to demonstrate Mr Winchester’s response to what the man had said to him, which it is submitted is a non‑hearsay purpose.
It is submitted that in light of the temporal proximity of the incident to Mr Winchester’s death the possibility of a threat being made to him is relevant. It is submitted that the evidence is not unfairly prejudicial to the prosecution, being a single strand in a circumstantial defence case which should not be considered in a fragmented manner. In addition it is submitted that Mr Hudson, who is still alive, in part corroborates Mrs Hudson’s evidence. Mr Hudson has also made a representation about Mr Winchester having entered names in the visitor’s book at the Italo-Australian Club and of having provided his address in the book which is submitted to be relevant to the possibility that Mr Winchester’s address could have been found out by anyone who attended the club.
Further the prosecution submits that the defence is entitled to explore in cross‑examination how this incident was investigated by police given its temporal proximity to the death of Mr Winchester. However in my view the possibility that such cross‑examination might be sought to be conducted does not require the whole of the representations contained in the s 67 notice relating to Mrs Hudson to be in evidence.
Further written submissions submitted by defence and prosecution
Subsequent to the hearing of oral argument in relation to this matter the defence filed further submissions on 15 May 2018. Those submissions informed me that on 11 May 2018 and in response to a defence request made on 19 April 2018, the prosecution disclosed a number of documents which related to the Italo-Australian Club, being visitors book entries from 18 December 1988 to 1 February 1989, and a diary entry of Detective Constable Pattenden relating to his seizure of property from the club on 12 January 1989. The submissions note that the visitor’s guest book recorded that a number of people ‘of potential relevance’ attended at the Italo-Australian Club.
Apart from the names of Mr Winchester and Mr Hudson appearing on 6 January 1989, on the following day, on 7 January 1989, a number of other names appear including a [redacted], T. Nirta, J. Nirta, J Trimboli, P. Trimboli, D. Trimboli, S. Pelle, F. Pelle, and J. Pelle. On 9 January 1989 an A. Trenery, M. Trenery, and G. Rondi appear. On 10 January 1989 a C. Mouri is recorded and on12 January 1989 a D. Mouri is recorded. On 14 January 1989 an R. Carboni is recorded.
The defence submits that it is:
…notable that those associated with the Bungendore plantations and members of families associated with the plantations meet at the club one day after Mr Winchester attended the club, with the Hudsons, and had the exchange with the man.
It is observed that members of the Trimboli family also attended. It is submitted that the Trimboli family has “been connected with the N'drangheta and the murder of Don Mckay”. It is also submitted that it is “a remarkable coincidence” that A.Trenery attended the club the day before the killing given the evidence from Witness B and Mrs Cumberland connecting Alan Trenery with transporting the firearm used to kill Mr Winchester. Accordingly it is submitted that the evidence of Mrs Hudson, (and Mr Trenery and Mrs Cumberland) should be admissible in the light of these guest book entries.
In response to the submissions made on behalf of the accused the prosecution requested that the AFP make enquiries into the persons identified in the submissions of the accused. Detective Sergeant Adam Rhynehart in company with other police conducted a number enquiries in relation to the persons named in the submissions of the accused. Mr Rhynehart reviewed the club’s sign‑in sheet from 6 January 1989, the date when Mr Winchester attended the club. Detective Rhynehart identified that eighty-six people had signed into the club on that date, which did not include members who did not sign‑in. In addition, searches were conducted of the electoral roll. The electoral roll searches which were conducted nationally and over different years revealed that there were seven people named A. Trenery, six people named N. Trenery, forty four people named [redacted], and thirty people named [redacted] on the electoral roll. The J. Trimboli, who attended the club on 7 January 1989, is not the Joseph Trimboli whom the defence had speculated about in its further written submissions, and he and his family appear to be irrelevant to the alternative hypothesis. The A. Trenery is not Alan Trenery and that person is also irrelevant to the alternative hypothesis. The entries relating to G. Rondi, C. Mouri and D. Mouri are not related to Alan Trenery and also are irrelevant. The entry relating to R. Carboni does not refer to the Roy Carboni who was associated with [redacted].
Conclusion
The further written submissions filed on behalf of the defence, containing as they do a number of speculative (and apparently incorrect) submissions about certain people who had signed the visitors book at the Italo-Australian Club in January 1989, do not make the evidence of Mrs Hudson any more relevant. Indeed the speculative nature of the further submissions demonstrates with force the irrelevance of the evidence upon which the accused seeks to rely set out in the s 67 notice relating to Mrs Hudson, as well as the speculative and inadmissible way in which the defence seeks to use such evidence. The speculative nature of the evidence sought to be relied upon by the defence is further demonstrated by the defence submission that Mrs Hudson’s evidence that Mr Winchester said “I will get the mongrel bastards” is admissible for the non-hearsay purpose of demonstrating Mr Winchester’s response to what the man had said to him. The absurdity of that submission is that no-one knows what was said to him. In such circumstances the evidentiary value of Mr Winchester’s response is probative of nothing and is speculation upon speculation.
In my view the evidence of Mrs Hudson as to the conversation between Mr Winchester and a person at the Italo-Australian Club is not relevant to any fact in issue. There is no evidence as to what was said to Mr Winchester, or by whom anything was said. It is purely speculation as to whether the incident was in any way related to the subsequent death of Mr Winchester. Mr Winchester was no doubt well known in Canberra and no doubt involved in many matters. There is nothing to say the incident in question is probative in any way.
Accordingly I rule that the evidence of Mrs Hudson as contained in the s 67 notice, relating to her observations of a man talking to Mr Winchester at the Italo-Australian Club on 6 January 1989 and Mr Winchester’s response, is not admissible
Until further order these orders and the reasons for this ruling are not to be published or disclosed other than to the parties and their representatives.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 14 June 2018 |
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