R v Eastman (No 46)
[2018] ACTSC 203
•30 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 46) |
Citation: | [2018] ACTSC 203 |
Hearing Date: | 24 July 2018 |
DecisionDate: | 30 July 2018 |
Before: | Kellam AJ |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Whether hearsay evidence of a witness’s wife presented by the prosecution is admissible pursuant to s 65(9) of the Evidence Act 2011 (ACT) – whether the opinion of a wife about her husband’s state of mind is admissible pursuant to s 78 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65(9), 67 and 78 |
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) ACT Legal Aid Office (Accused) | |
File Number(s): | SCC 111 of 1992 |
Kellam AJ:
It is proposed by agreement between the prosecution and the defence that evidence of Mrs Helen Webb, who is by reason of illness unable to give evidence, be led pursuant to s 67 of the Evidence Act 2011 (ACT) (the ‘Act’). Mrs Webb was interviewed by police on 17 November 1992 and the questions asked and answers she gave are recorded in a record of conversation (the ‘record of conversation’). In general, agreement has been reached by the parties as to what parts of the record of conversation had by police with Mrs Webb, on that date, should be introduced into evidence. However, agreement has not been reached as to the admissibility of a number of questions and answers contained therein, which I am now required to determine.
Mr Raymond Webb, the husband of Helen Webb, gave oral evidence before the court on 9 July 2018. He was cross‑examined about when he first told his wife that he saw the accused enter Mr Klarenbeek’s house. He agreed (at T 907) that the only time he ever spoke to his wife about the matter, was before he went and spoke to Mr Lawler, of the Australian Federal Police (AFP), on 13 November 1992. The following passages appear (at T907-908):
Before you went and saw Mr Lawler?---Yes. I told her I was going to - I had to go into the police station and she said, "Are you sure?" and I said, "Yes."
As at 1988 - sorry, 1992 how long had you been married?---Married about 26. I've been married about 47 years or something.
Close relationship with your wife?---Yes, we do. Yes.
So do you say that at no time between 31 December 88 up until around the time you told Mr Lawler did you ever mention to her that you saw Mr Eastman entering Mr Klarenbeek's house?---No, never. She would have worried.
It was after the fishing trip of late October 92 that you told your wife. Is that correct?---It was - yes, that would have been right, after I - around about then some time, yes.
What you told her was this, was it not, that you thought you had seen David Eastman at the Klarenbeek house?---No, I didn't say that. I said I had to go in and make a statement that I had seen Mr Eastman at the house and she said ‑ ‑ ‑
Did you ever - - -?--- - - - "Are you sure?"
No, I'm not asking you what she said. Did you ever tell your wife when speaking to her about the fact you had to go in to make a statement that you thought the man you had seen was David Eastman?---No.
Didn't say to her that it was David Eastman, did you?---I said it was.
Didn't say to her that you were certain it was David Eastman?---No. Didn't go into much detail. I said I was going in to make a statement and told her who it was and she said, "Are you sure?"
You told her that you thought it was David Eastman I suggest?---No, I said I saw.
The prosecution argues that questions 120, 121 and 141 and the Mrs Webb’s answers thereto in the record of conversation should be admitted into evidence. Those questions and answers are as follows:
Q120.So he's, you believe he, in his own mind he was confident.
A.Mm, must've been.
Q121.That he definitely saw that man?
A.Yes.
….
Q141.Did er, you try and persuade your husband not to come and talk to the Police about it.
A.Oh I said "You be very careful" I said er, "You be sure".
The prosecution argues that the above questions are admissible pursuant to s 65(9) of the Act and/or alternatively, pursuant to the exception to the opinion evidence rule under s 78 of the Act.
It has been agreed between the parties that questions 98, 134 and 135 and the answers given by Mrs Webb thereto, are to be admitted into evidence as follows:
Q98 Did he did he tell you what it actually was that was giving him concern?
A, Oh, he just mentioned that he, he, he thought he saw Eastman, oh, I think he was coming out and Eastman was going in.
Q134.Did he tell you exactly what he told the Police?
A.And now last night. Er, well I don't know what he told the Police only er, I don't know what he told the Police, only that er, he told me in passing, he thought it was Eastman. So that's
Q135.He thought, or he was sure it was?
A.Er, well didn't he have some tests or something to identify him or something. I don't know one
As is clear from the above, in the course of answering questions 98 and 134, Mrs Webb said that her husband told her, in passing, that he thought it was Eastman. No doubt these statements were the basis of the puttage by Mr Georgiou, in cross‑examination of Mr Webb, that he had told his wife that he ‘thought’ the man he saw was the accused. As is clear from the above, Mr Webb rejected that proposition, and insisted that he had told his wife that it ‘was’ the accused.
Mr Thangaraj argues on behalf of the prosecution that if the answers to questions 120 and 121 are left out, the jury are only getting ‘a partial picture’ which he argues is unfair to the prosecution. He argues that the use of the words by Mrs Webb in answer to questions 98 and 134 that her husband told her that he ‘thought it was Eastman’ is not said to be a quotation. Rather, he argues, that Mrs Webb in giving those answers was relaying his words and ‘effectively’ she was summarising the conversation that she had had with her husband.
On the other hand, Mr Georgiou on behalf of the accused argues that the question addressed to Mrs Webb in question 120 inquired not as to what was said by Mr Webb, but as to Mrs Webb’s belief about what was in her husband’s mind at the time. He argues that the answer Mrs Webb gave to question 120, demonstrates that she was expressing an opinion with no foundation and that such opinion is, accordingly, speculative.
In response Mr Thangaraj submits that it is clear from the answers given by both Mr Webb in his evidence, and Mrs Webb in response to questions asked of her by police, that the issue of the identification of the accused by Mr Webb, and his intention to speak to police, was discussed between the pair of them. He submits that this was an exchange between a husband and wife who knew each other, and that it is clear that any conclusions that Mrs Webb drew, were based on the discussions that Mrs Webb had with her husband. Mr Thangaraj points to the answers given to questions 136 and 141 by Mrs Webb, which make it clear that she and her husband had discussed Mr Webb having looked at the photographs, and that they had discussed in some detail the decision of Mr Webb to speak to police about his identification of the accused. The prosecution submits that in circumstances whereby the accused has in cross‑examination challenged the evidence by Mr Webb about him having told his wife that he recognised the accused as the same person that he saw at the Klarenbeek house, it is entitled to lead the evidence in dispute pursuant to s 65(9) of the Act.
Furthermore, the prosecution argues that, insofar as the evidence of Mrs Webb is opinion, it is admissible pursuant to s 78 of the Act on the basis that the opinion of Mrs Webb is based upon what she saw, heard and perceived about the matter of the discussion had with her husband about the recognition by him of the accused and his intention to tell police about it, and that evidence of the opinion is necessary for the jury to obtain an adequate account or understanding of her perception of that matter.
In my view the evidence of Mrs Webb referred to in the answers to questions 120 and 121 is admissible. Whilst I accept the thrust of Mr Georgiou’s argument that the evidence of Mrs Webb in response to those questions is opinion evidence, I do not accept the submission that the evidence is without foundation. The foundation is apparent, both from the preceding and indeed a number of the subsequent questions answered by Mrs Webb. Questions 71 to 80, which the defence seeks to have introduced into evidence, make it clear that there had been discussions between Mr Webb and his wife. In answer to question 71, Mrs Webb said that her husband had told her what was worrying him, and she said that ‘if you’re a hundred percent sure, you go’, that being clearly relevant to an issue then under discussion as to whether or not Mr Webb should finally report to police what he says he saw. Those earlier questions and answers by Mrs Webb cannot be disconnected from her answers to questions 120 and 121, as they relate to the state of mind of Mr Webb. The answer to question 141 is likewise related to the matter under consideration, in that Mrs Webb stated that she told Mr Webb to ‘be sure’ before talking to police. Furthermore, insofar as the evidence of Mrs Webb in the answers given by her to questions 120 and 121 is opinion evidence, the opinion is in my view based on what Mrs Webb heard from her husband and perceived about the discussion they had about his decision to speak to police. In circumstances whereby Mr Webb’s evidence about the circumstances and background of that decision are under challenge, Mrs Webb’s evidence is admissible.
I turn now to the other matters which are in dispute between the parties. The following questions asked of Mrs Webb and her answers are sought by the prosecution to be admitted into evidence:
Q136.He looked at a number of photographs ••••••••••••••
A.Yes, I think he did say that, but I sort of don’t take it all in because I've got my own worries.
……..
Q139.Did it cause you some concern?
A.Oh it did in the beg [sic], in the first, yes, er, because that man, I said "If he can shoot the Comm, err, Assistant Commissioner he'll come round and shoot anybody”.
…….
Q141.Did er, you try and persuade your husband not to come and talk to the Police about it.
A.Oh I said “You be very careful” I said er, “You be sure”.
In addition the prosecution seeks to have admitted into evidence question 145 and, as its answer, the answer to question 146 as follows:
Q145.Do you fear for the safety of your family ….
…..
A. (to Q146)So ah, but in the beginning I was a bit frightened.
First, the prosecution points to the evidence given by Mr Webb in the course of this trial on 9 July 2018. He was asked, in the course of giving evidence in chief, why it was that he did not tell the police in January and August of 1989, and the Coroner in 1990, that he had seen a person at the Klarenbeek house. His answer was:
…. Two reasons. One, I was on duty with Telstra at the time. I was a supervisor. I shouldn't have been there. Like, I tell my staff what to do and here I am doing the wrong thing, and I was a bit scared for myself and my family that if - because I didn’t see anyone buy a gun, I just seen a person there, that didn’t mean that much, you know. Yeah, I was just sort of a bit scared.
Did you have a view as to what the seller, that is, Mr Klarenbeek, may or may not be able to assist the police with?---Well, I thought there would be no - well ‑ ‑ ‑
MR GEORGIOU: Your Honour, I'm not sure this witness can answer that question.
MR THANGARAJ: No, it’s only ‑ ‑ ‑
HIS HONOUR: He was asked about his own view.
R THANGARAJ: That's right.
Do you want me to repeat the question?---No, no, it's fine. No, I - I thought I'd told them where the Ruger rifle was and I thought, well, you know, they could go to the owner who sold the gun and his wife, they should be able to say who they sold the gun to.
Mr Webb stated in evidence that when he told his wife he intended to go to police to report that he had seen the accused, she asked him if he was sure that he was identifying the right person. He said that he answered ‘Yes’, but he didn’t say much more because his wife was a ‘worrier’ and ‘he didn’t want to worry her’.
In cross‑examination Mr Webb was asked why, on 28 August 1989, he had told police that ‘nobody else came to look at the rifles’ for sale at Mr Klarenbeek’s house whilst he was there. He said ‘I was more worried about my own concerns’.
Mr Webb was challenged as to why he did not raise the identification with police that he was acquainted with through the AFP Fishing Club. He stated that he did not do so ‘because they would have wanted me to take it further’ and that ‘Maybe I was selfish. Maybe I put myself and family first.’
The prosecution submits that in circumstances whereby the defence have challenged Mr Webb in cross‑examination, and in circumstances whereby counsel for the accused through cross‑examination has led evidence that Mr Webb did not tell Mr Mooney or Mr Croft of the fact of his identification of the accused, the questions and answers presently under consideration are relevant to that matter. It is submitted that the challenge to the evidence of Mr Webb is, in effect, that he should have come forward if he had identified the accused, and that he didn’t because, contrary to his denials, he did not recognise the accused at all. It is submitted that the partial explanation for that, which is given by Mr Webb in evidence, and which is referred to in the questions to and answers by Mrs Webb currently under consideration, is the joint fear of Mr and Mrs Webb as to the consequences of Mr Webb going to police and identifying the accused.
In response Mr Georgiou submits first, that the answer to question 136 that ‘Yes, I think he did say that, but I sort of don’t take it all in because I've got my own worries’ is so speculative as to be inadmissible as being irrelevant. It is submitted that her ‘worries’ could relate to health, financial matters, children, or for that matter any other matter. It is submitted that the proper construction of the phrase ‘I’ve got my own worries’ suggests that it is removed from the issue of whether Mrs Webb’s worries included her husband’s purported identification of the accused.
In my view, the submission advanced on behalf of the accused in relation to question 136 is correct. The answer is not one that could reasonably be said to be clearly in response to the concern or fear of the consequences of the identification of the accused by Mr Webb.
I turn now to questions 139 and 141 and the answers thereto.
Mr Georgiou on behalf of the accused submits that the answer to question 139 is speculative. It is argued that it is irrelevant as to whether Mrs Webb had any concerns about the repercussions of Mr Webb having had an interview with the police (it is clear that the answer to question 139 is related to the question which was addressed to Mrs Webb at question 138 when she was asked about Mr Webb having told Mrs Webb that he had in fact had an interview with police. I observe that neither the defence nor the prosecution seek that question 138 be included).
In relation to question 139 Mr Georgiou submits that the question of whether or not Mrs Webb held any concerns bears no relevance to Mr Webb’s evidence that he did not go to police out of concern for his family. It is argued that the answer bears no relevance to Mr Webb’s expressed reasons, which the defence do challenge, for failing to report the material to the police in the first place.
However, the prosecution argues that there was clear challenge to Mr Webb about him not telling his wife about having seen the accused at the Klarenbeek house before he decided to speak to police about that matter. In this regard, Mr Webb was asked the following question in cross-examination:
So do you say that at no time between 31 December 88 up until around the time you told Mr Lawler did you ever mention to her that you saw Mr Eastman entering Mr Klarenbeek's house?---No, never. She would have worried.
Questions were then asked of Mr Webb as to whether he had ever watched the news with his wife when the accused’s image came on the screen. He was then asked:
But you would say that even though that might have happened you didn't tell your wife about it?---No, I would never have told her.
It is submitted by the prosecution that the evidence is relevant to the state of mind of Mr Webb, in that Mr Webb gave evidence that he did not wish to worry his wife as being a reason why he did not tell her previous to his decision to speak to police. It is argued that Mrs Webb’s response to questions 139 and 141, explains that evidence in that it demonstrates that Mr Webb understood how his wife would feel in relation to the matter and that she ‘actually gives evidence about it’. It is submitted that the evidence is relevant under s 69(9) of the Act in response to the defence challenge in cross‑examination to Mr Webb as to him not having told his wife and the reasons therefor.
In my view, Mrs Webb’s answers to questions 139 and 141 are admissible for the reasons advanced by the prosecution.
I turn now to questions 145 and 146. I set out below the parts of the record of conversation in question:
Q145.Do you fear for the safety of your family about
A.Oh I don't know. Well apparently he, he's being watched. As you just said.
Q146.Mm-mm
A. So ah, but in the beginning I was a bit frightened.
The prosecution does not seek that the word ‘about’ at the end of question 145, nor the answer to question 145, nor the question 146, be admitted into evidence ( i.e. the parts underlined by me). It does seek the admission of the words in question 145 ‘Do you fear for the safety of your family’ and the answer to question 146 ‘So ah, but in the beginning I was a bit frightened’.
On behalf of the accused Mr Georgiou argues that, first of all, question 145 is asking the question in the present tense, as at the date of the record of conversation being 17 November 1992. Clearly the answer to question 145 (which neither party seeks to be admitted and which is prejudicial) relates to the time at which the question was asked. The answer to question 146 relates to a period of time prior to that and in all likelihood to a time when Mrs Webb was first informed by her husband about his intention to speak to the police about the accused. It is unclear as to precisely when that discussion took place. The evidence of Mr Webb is that the only time he talked to his wife about the matter was when he told her ‘he had to go to the police station’. Accepting that, the time period in question was a matter of some days before Mrs Webb was interviewed by police. It should be observed that Mr Webb made his further statement to police on 13 November 1992, only four days before Mrs Webb was interviewed. However, Mr Georgiou argues further that the fact of Mrs Webb expressing fear is irrelevant and that it is not apparent that Mrs Webb ever discussed with her husband the question of fears and concerns for safety as a reason for Mr Webb not to report the matter to police.
In response Mr Thangaraj argues that the point that is established by the answer to question 146 is that it demonstrates that Mrs Webb did have some fear and that explains and justifies the evidence of Mr Webb that he did not want to cause his wife worry as the reason for him not telling her previously that he had seen the accused at the Klarenbeek premises.
In my view, question 145 and the answer given under question 146 is admissible on the basis argued by the prosecution. I observe that Mr Georgiou submits that if I am to rule the question and answer under present consideration as admissible, the words ‘Oh I don’t know’ which commence the answer to question 145, should be included. I have given consideration to that but it appears to me that those words are a response to the question asked in the present tense, and furthermore are clearly related to the following sentence which the parties agree should be deleted on the basis of being prejudicial. Although question 145 clearly relates to the present, and the response to question 146 clearly relates to the past, it appears to me that it is really one question with a slight interruption of ‘Mm-Mm’ in the middle.
Conclusion
In relation to the record of conversation between police and Mrs Helen Webb dated 17 November 1992:
(a)The questions and Mrs Helen Webb’s answers to questions 120 and 121 are admissible.
(b)The question and Mrs Webb’s answer to question 136 are not admissible.
(c)The questions and Mrs Webb’s answers to questions 139 and 141 are admissible
(d)Question 145 (as redacted in the draft provided to me) and Mrs Webb’s answer in response to question 146 are admissible.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 30 July 2018 |
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