R v Eastman (No 43)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Eastman (No 43)

Citation:

[2018] ACTSC 186

Hearing Dates:

28 May 2018; 30 May 2018 – 31 May 2018

DecisionDate:

14 June 2018

ReasonsDate:

28 June 2018  

Before:

Kellam AJ

Decision:

See [147] – [150]

Catchwords:

CRIMINAL LAW – EVIDENCE – Admissibility of recordings of the accused speaking – recorded from lawful listening devices –to enhancement of audio-recordings considerations applicable – use of transcripts of audio-recordings – consideration of whether utterances are admissions and, if so, are admissible pursuant to s 90 of the Evidence Act 2011 (ACT) – whether evidence of admissions should be excluded pursuant to ss 135 and 137 of the Evidence Act 2011 (ACT) – tendering records as evidence pursuant to s 48 of the Evidence Act 2011 (ACT)

Legislation Cited:

Evidence Act 2011 (ACT) ss 48(1)(c), 56(2), 79(1), 90, 135 and 137

Evidence Act 1995 (Cth) s 48(1)(c)

Cases Cited:

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180

Christos v The Queen [2013] VSCA 202
Eastman v The Queen (1997) 148 ALR 107
Honeysett v The Queen [2014] HCA 29; 253 CLR 122
R v Giovannone [2002] NSWCCA 323; 140 A Crim R 1
R v McCaul (Unreported, Supreme Court of Victoria, Stephen J, 22 September 1971)
R v Miladinovic (1992) 107 FLR 241
R v O’Neill [2001] VSCA 227
R v Taylor [1993] 1 NZLR 647
R v Vandergulik (No 1) [2008] VSC 407

R v Watts [1992] 1 Qd R 214

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:

1. In September 1989 the Australian Federal Police (‘AFP’) installed lawfully authorised listening devices (‘LD’) in the home of the accused.

1. The listening devices were monitored 24 hours per day and tape recorded. Detective Sergeant McQuillen visited the listening post every day and listened to all of the recorded material. Because of difficulty in understanding parts of the recorded material when the accused was whispering, or because of background noise, a team of five detectives was engaged to work on enhancing the audio quality of the recordings and to produce transcripts of relevant recordings. Subsequently enhancement was made when the master tapes were recorded onto digital audio‑tapes which were sent to the Forensic Audio Laboratory of the London Metropolitan Police, and also to Forensic Phoneticians of the German State Police. Two forensic phonetic experts were engaged by the German State Police, Professor Hermann Kunzel and Professor Angelika Braun, who enhanced the digital audio‑tapes. All of this took place prior to the first trial.

1. The prosecution now seeks to rely upon five LD recordings containing alleged admissions made by the accused on 3 June 1990 (TAB 003), 22 June 1990…