R v Eastman (No 47) - [2018] ACTSC 263

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 47)
Citation:	[2018] ACTSC 263
Hearing Dates:	10 September 2018
DecisionDate:	12 and 14 September 2018
ReasonsDate:	17 September 2018
Before:	Kellam AJ
Decision:	See [71]
Catchwords:	CRIMINAL LAW – Evidence – Admissibility of parts of evidence given by accused at a previous trial
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:

In the course of pre-trial argument the prosecution made application that, with certain limited exceptions, the whole transcript of evidence given by the accused at his first trial, be admitted into evidence at the retrial. By my ruling of 21 June 2017 (R v Eastman (No 15) [2017] ACTSC 143) I ordered that the application be dismissed.

In giving my reasons for dismissing the application I stated at [59] as follows:

59.However, notwithstanding the above ruling, it is appropriate to say that I am conscious of, and to a degree share, the concerns expressed by the prosecution that if the accused's evidence from the first trial is not admitted, the defence could run a case completely inconsistent with previous admissions made by the accused. As the prosecution submits, this would be an unfair tactical advantage and would be misleading to the jury…..
60.The concerns of the prosecution as to possible unfairness flowing from my ruling are not, in my view, without substance. Senior Counsel for the accused, very properly, acknowledged that (concern) by stating in the course of his submissions that 'if certain puttage is put to witnesses that the Crown may revisit this particular issue and seek your Honour's leave to produce certain evidence from the first trial'. Likewise, he acknowledged that in the event of the accused giving evidence that is inconsistent with the evidence given by him at trial the prosecution may well seek leave to adduce evidence of prior inconsistent statements of the accused. It should not be assumed in such circumstances that the protection provided by my ruling excluding the evidence of the accused at the first trial is absolute, nor that in appropriate circumstances, I would not be prepared to revisit the question of the admissibility of particular aspects of such evidence.

The prosecution case is now not a long way from being completed, with the evidence of over 160 witnesses having been heard.

By reason of matters raised by the defence in the course of the trial the prosecution now seeks to adduce certain parts of the evidence of the accused given at the first trial. The evidence in question involves several different topics which the prosecution sets out as follows:

(a)Why Mr Eastman said what he did to police on 11 January 1989;
(b)Where Mr Eastman would…

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 263
Decision Date: 14 September 2018

CaseChat Overview and Summary

In the case of R v Eastman (No 47), the appellant, previously convicted of murder, appealed against the trial judge's decision to admit evidence from his previous trial where he had invoked his right to silence. The Court of Appeal was tasked with determining the admissibility of parts of the evidence given by the appellant during his earlier trial in the context of his current trial. This case involved the critical intersection of criminal procedure and the admissibility of evidence obtained under the defendant's silence.

The primary legal issue before the court was whether the trial judge erred in admitting the evidence, which included the appellant's silence and the implications of that silence, in his current trial. The appellant argued that the admission of this evidence was an abuse of process, as it was obtained during a previous trial where he had invoked his right to silence. The prosecution, on the other hand, maintained that the evidence was relevant and should be considered in the context of the current trial.

The Court of Appeal found that the trial judge did not err in admitting the evidence from the previous trial. The court reasoned that the evidence was relevant to the current trial and did not constitute an abuse of process. The court emphasised the importance of considering the totality of the circumstances and the context in which the evidence was obtained. The admissibility of the evidence was assessed under the principles of relevance and fairness, and the court concluded that the trial judge's decision was correct. Consequently, the appeal was dismissed.

The court upheld the trial judge's decision, confirming that the evidence was admissible and that no abuse of process had occurred. The court's decision underscored the importance of maintaining the integrity of the judicial process while ensuring that all relevant evidence is considered in the interest of justice.

Orders

Orders of the court

See [71]

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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