R v Eastman (No 44) - [2018] ACTSC 194

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 44)
Citation:	[2018] ACTSC 194
Hearing Date:	27 June 2018
DecisionDate:	4 July 2018
Before:	Kellam AJ
Decision:	See [35]
Catchwords:	CRIMINAL LAW – EVIDENCE – Evidence of a decision of the Administrative Appeal Tribunal is not excluded pursuant to s 91 of the Evidence Act 2011 (ACT) if it is not relied on to prove the existence of the fact in issue and the evidence is relevant and probative – pursuant to s 91(2) the evidence admitted for another purpose is not admissible to prove the fact – where the probative value of admissible evidence is outweighed by the risk of unfair prejudice to the accused the evidence must be excluded pursuant to s 137 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 1995 (NSW) s 91 Evidence Act 2011 (ACT) ss 60, 91 and 137
Cases Cited:	Ainsworth v Burden [2005] NSWCA 174 Attorney General of New South Wales v Martin [2015] NSWSC 1372 R v Eastman (No 38) [2018] ACTSC 124
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:

The prosecution seeks to have admitted into evidence edited parts of the Administrative Appeals Tribunal (‘AAT’ or ‘Tribunal’) decision of 4 November 1986 entitled AK v Commissioner for Superannuation (No A86/39) (the ‘AAT decision’) which relates to review sought by the accused of a decision made by the Commissioner for Superannuation to place him on an invalidity pension rather than determine that he was fit to perform work in the public service.

The defence opposes the admission of any part of the AAT decision upon several grounds, the first being s 91 of the Evidence Act 2011 (ACT) (the ‘Act’) and, alternatively, on the basis of s 137 of the Act.

Section 91 of the Act is as follows:

91Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.
(2)Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.
NoteSection 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

It is convenient to briefly summarise those parts of the AAT decision that the prosecution seeks to have admitted into evidence. First, the prosecution seeks to have admitted parts of the decision that set out the history of the employment of the accused subsequent to the resignation of the accused on 29 June 1977. That history contains reference to what the Tribunal…

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.

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Details

Case: [2018] ACTSC 194
Decision Date: 4 July 2018

CaseChat Overview and Summary

The case of R v Eastman (No 44) involved the accused, Eastman, facing criminal charges. The primary issue before the court was whether evidence from the Administrative Appeal Tribunal should be admitted under section 91 of the Evidence Act 2011 (ACT). The court also had to determine whether the evidence was relevant and probative and whether its probative value outweighed any risk of unfair prejudice to the accused. The court examined the statutory provisions and assessed the potential impact of the evidence on the fairness of the trial.

The court's reasoning focused on the interpretation and application of sections 91 and 137 of the Evidence Act 2011 (ACT). It held that evidence from the Administrative Appeal Tribunal is not excluded under section 91 if it is not used to prove the existence of the fact in issue and if it is relevant and probative. However, if the probative value of admissible evidence is outweighed by the risk of unfair prejudice to the accused, the evidence must be excluded under section 137. The court assessed the balance between the probative value of the evidence and any potential prejudice it might cause to the accused.

The court concluded that the evidence from the Administrative Appeal Tribunal was admissible for a purpose other than proving the existence of the fact in issue and was relevant and probative. However, it found that the probative value of the evidence was outweighed by the risk of unfair prejudice to the accused. Consequently, the court excluded the evidence under section 137 of the Evidence Act 2011 (ACT).

The court's final orders reflected its reasoning and the statutory provisions it applied. The court excluded the evidence from the Administrative Appeal Tribunal, ensuring that the fairness of the trial was not compromised by the potential prejudice it might cause to the accused.

Orders

Orders of the court

See [35]

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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