R v Eastman (No 40) - [2018] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 40)
Citation:	[2018] ACTSC 174
Hearing Dates:	27 March 2018 – 28 March 2018; 5 April 2018
DecisionDate:	14 June 2018
Before:	Kellam AJ
Decision:	See [78] – [82]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence – objection to Crown to evidence in s 67 notices served by defence pursuant to s 65(8) of the Evidence Act 2011 (ACT) – that part of the evidence set out in the s 67 notices which is relevant to a fact in issue is admissible pursuant to s 55 of the Evidence Act 2011 (ACT) – in criminal matters the court is slow to exclude evidence presented by the defence on the basis that the risk of unfair prejudice substantially outweighs its probative value pursuant to s 135 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 65 and 67
Cases Cited:	R v Eastman (No 32) [2018] ACTSC 12 R v Taylor [2003] NSWCCA 194
Texts Cited:	Australian Law Reform Commission, Evidence (Interim Report), Report No 26 (1985) Report of the Board of Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (29 May 2014)
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 number of notices pursuant to s 67 of the Evidence Act 2011 (ACT) (‘the Act’). The prosecution objects to the defence leading the whole or part of the evidence referred to in a number of the notices which have been filed and served. The s 67 notices at present under consideration are as follows:

(a)Section 67 notice relating to John Nicolas Weel filed by the defence on 22 February 2018;
(b)Section 67 notice relating to Bob Blissett filed by the defence on 6 February 2018;
(c)Section 67 notice relating to [redacted] filed by the defence on 19 March 2018;
(d)Section 67 notice relating to Colin Stanley Winchester filed by the defence on 19 March 2018.

John Nicholas Weel

The defence seeks to rely on the previous representations of John Weel who is now deceased. The representations to be relied upon are contained in two statements, the first dated 11 July 1988 and the second made on an unknown date and at an unknown place. In essence the evidence of Mr Weel is that on 31 March 1982 he was a detective sergeant of police attached to the drug bureau of Victoria police and that he was involved in the apprehension of two vehicles occupied by Robert Enterkin, Antonio Barbaro and Gianfranco Tizzone. Both vehicles contained a substantial amount of marijuana. Enterkin, Barbaro and Tizzone were arrested. Subsequently on…

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 40)

Details

AGLC: R v Eastman (No 40) [2018] ACTSC 174
Case: [2018] ACTSC 174
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case of R v Eastman (No 40) involved the Crown and the defence, with the dispute centred on the admissibility of evidence under the Evidence Act 2011 (ACT). The matter was heard in the Supreme Court of the Australian Capital Territory. The defence sought to have certain evidence excluded on the grounds that its probative value was substantially outweighed by the danger of unfair prejudice to the defendant. The Crown objected to the evidence, which was part of notices served under section 67 of the Act.

The legal issues that the court needed to address included the scope of section 67 of the Evidence Act 2011 (ACT) and the application of section 135 of the Act, which allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. The court also had to consider the interplay between sections 55 and 65(8) of the Act, which deal with the relevance and disclosure of evidence by the defence.

In its reasoning, the court held that the evidence in question was relevant to a fact in issue and was therefore admissible under section 55 of the Evidence Act 2011 (ACT). The court noted that in criminal proceedings, the threshold for excluding evidence presented by the defence is high. The court found that the probative value of the evidence outweighed any potential prejudice to the defendant. Consequently, the Crown's objection to the admissibility of the evidence was overruled.

The final orders of the court, detailed in paragraphs [78] to [82], affirmed the admissibility of the evidence in question. The court directed that the evidence would be considered as part of the proceedings, thereby allowing the trial to proceed with the full set of disclosed evidence.

Orders

Orders of the court

See [78] – [82]

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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