R v Eastman (No 41) - [2018] ACTSC 175

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 41)
Citation:	[2018] ACTSC 175
Hearing Dates:	26 March 2018; 4 April 2018; further written submissions filed by the defence on 16 May 2018 and by the prosecution on 18 May 2018
DecisionDate:	14 June 2018
Before:	Kellam AJ
Decision:	See [49]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence pursuant to s 43 of the Evidence Act 2011 (ACT) as evidence of a prior inconsistent statement of witness – where evidence admitted pursuant to s 43 the hearsay rule does not apply to the evidence pursuant to s 60 of the Evidence Act 2011 (ACT) – circumstances surrounding the making of the representation are relevant to determining whether the happening of the asserted fact is ‘fresh in the memory’ of the person making the representation pursuant to s 66(2) of the Evidence Act 2011 (ACT) – inconsistency in the evidence affected its probative value – evidence excluded pursuant to s 135 of the Evidence Act 2011 (ACT) because the low probative value of the evidence is substantially outweighed by its prejudicial effect
Legislation Cited:	Evidence Act 2011 (ACT) ss 38, 43, 56, 60, 66, 101A, 102 and 106
Cases Cited:	Clay (a Pseudonym) v The Queen [2014] VSCA 269; 245 A Crim R 470 Graham v The Queen [1998] HCA 61; 195 CLR 606 R v Brooks (No 3) [2017] NSWSC 261 Singh v The Queen [2011] VSCA 263; 33 VR 1 R v XY [2010] NSWCCA 181; 79 NSWLR 629
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) Legal Aid ACT (Accused)
File Number:	SCC 111 of 1992

KELLAM AJ:

By written submissions filed on 13 March 2018 the prosecution argues that unless the defence calls Mr Trenery the evidence of Witness B would be inadmissible hearsay.

By written submissions filed on 26 March 2018 the defence has stated that it proposes to call Mr Trenery in the event that the prosecution refuses to call him.

Notwithstanding the indication from the defence that it proposes to call Mr Trenery the prosecution submits that Mr Trenery’s evidence is nevertheless irrelevant and thus is inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) (the ‘Act’). Thus it is submitted that Mr Trenery cannot be called to give admissible evidence and the evidence of Witness B cannot be admitted into evidence. The evidence of Mr Trenery given on the voir dire is to the effect that sometime in 1989 or 1990 he disposed of a single-shot Lithgow rifle and not a Ruger 10/22. It is submitted that in such circumstances the evidence of Mr Trenery is irrelevant to any issue in the trial.

Witness B gave evidence on the voir dire that he had known Mr Trenery…

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 41)

Details

AGLC: R v Eastman (No 41) [2018] ACTSC 175
Case: [2018] ACTSC 175
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case before the court was R v Eastman (No 41), where the issue at hand was the admissibility of a witness's prior inconsistent statement under section 43 of the Evidence Act 2011 (ACT). The defendant sought to have the prior inconsistent statement excluded on the grounds that its probative value was substantially outweighed by its prejudicial effect, pursuant to section 135 of the Act. The trial judge had admitted the evidence under section 43, which permits the use of prior inconsistent statements as evidence of the truth of the matter asserted, but the defendant contested this ruling.

The legal issues before the court involved determining the admissibility of the prior inconsistent statement, particularly in light of the interplay between sections 43, 60, and 66(2) of the Evidence Act 2011 (ACT). The court had to consider whether the circumstances surrounding the making of the representation were such that the asserted fact was ‘fresh in the memory’ of the person making the representation. Additionally, the court needed to weigh the probative value of the inconsistent evidence against its prejudicial effect, especially given the inconsistency in the evidence.

In reaching its decision, the court found that the evidence was admissible under section 43 of the Act, but its probative value was significantly reduced due to the inconsistency in the witness's evidence. The court determined that the prejudicial effect of the evidence substantially outweighed its probative value, leading to its exclusion under section 135. The court noted that the inconsistency in the evidence diminished its reliability, thereby reducing its overall probative force.

The final orders of the court were as outlined in paragraph [49], where the court ruled that the prior inconsistent statement would not be admitted as evidence due to its low probative value and the significant prejudicial effect it would have on the trial. This decision underscores the importance of ensuring that evidence introduced in a trial has sufficient probative value to justify its use, particularly when it may also have a significant prejudicial impact.

Orders

Orders of the court

See [49]

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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