R v Eastman (No 46)

[2018] ACTSC 203

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:

1. 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.

1. 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.