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 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:
In September 1989 the Australian Federal Police (‘AFP’) installed lawfully authorised listening devices (‘LD’) in the home of the accused.
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.
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…
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- Case
- [2018] ACTSC 186
- Decision Date
CaseChat Overview and Summary
The court engaged in a detailed analysis of the principles governing the admissibility of admissions, considering whether the utterances were indeed admissions and if their probative value outweighed any prejudicial effect. The court examined the context in which the statements were made and the reliability of the enhancement process. The judge also assessed whether the probative value of the admissions was substantially outweighed by the danger of unfair prejudice to the accused. After thorough deliberation, the court concluded that the evidence was admissible and that the probative value of the admissions did not warrant exclusion under ss 135 and 137 of the Evidence Act 2011 (ACT).
The court ultimately ruled that the recordings and their transcripts could be tendered as evidence, subject to the conditions specified in s 48 of the Evidence Act 2011 (ACT). This decision allowed the prosecution to use the enhanced recordings as part of their case against Eastman. The court's ruling emphasised the importance of balancing the rights of the accused with the need for reliable evidence in criminal proceedings. The final orders of the court, detailed in paragraphs [147] to [150], confirmed the admissibility of the recordings and set out the specific conditions under which they could be presented in court.
Orders
Orders of the court
See [147] – [150]
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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