R v Eastman (No 47)
[2018] ACTSC 263
•14 September 2018
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 park when he was inspecting a gun;
(c)What Mr Eastman wanted when meeting with Mr Neil Brown;
(d)The hearing of the Russo charge being on 12 January 1989;
(e)The offer to purchase the Thompson Ruger;
(f)Extracts from the listening device material.
I set out below the material which the prosecution claims to be relevant to each topic, the submissions of the parties and my conclusions.
(a) Why Mr Eastman said what he did to police on 11 January 1989
The evidence of Detective Constables Jackson and Thomson has yet to be led in this trial, but evidence was given at the previous trial that they attended upon the accused at about 3pm on 11 January 1989 to enquire of him as to his whereabouts on the previous evening.
Detective Jackson’s evidence on 25 May 1995 was as follows (at T738 – 740)
A short time later the door was partially opened by a male person I now know to be David Harold Eastman. I said, "Mr David Eastman?" He said, "Yes." I said, "I am Detective Jackson and this is Detective Thomson from the police." I then showed Mr Eastman my Australian Federal Police warrant card and badge. I said, "We are making inquiries into the death of Assistant Commissioner Winchester and I would like to have a few words with you in relation to the matter.” He said, "I cannot help you with that inquiry." I said, "It is a routine inquiry, I would just like to ask you a few questions if you don't mind." He said, "I cannot help you with that." I said, "Apparently you had a meeting with Mr Winchester in December last year and we would just like to talk to you about that." He said, "It is not a good time to talk to me at the moment as I have my solicitor with me in relation to another matter." I said, "If it is not convenient, can we make another time?" He said, "Will it take long?" I said, "No, not long." He said, "I will go and speak with my solicitor.” Mr Eastman then closed the front door of the premises. A short time later, the front door was opened by Mr Eastman. He said, "Come in now." Detective Thomson and I then entered the premises. On entering the premises I saw a male person I now know to be Mr Greg Walker. Detective Thomson and I then introduced ourselves to Mr Walker. All persons then sat down in the lounge room area of the flat. I then commenced to have a conversation with Mr Eastman in the presence of Mr Walker and Detective Thomson and I took notes of the conversation as it took place in an Australian Federal Police field book. I said, "Mr Eastman, as I've already told you, we're making inquiries into the death of Mr Winchester. I would like to ask you questions about that matter and I want you to know that you don't have to answer the questions unless you wish to. "He said, "Yes." I said, "I've been informed you had a meeting with Mr Winchester in December last year?" He said, "Yes, with Mr Neil Brown, the shadow Attorney-General." I said, "What date was that meeting?" He said, "I'm not sure. I'll just check in my diary." Mr Eastman then went to the bench area of the kitchen and then returned to where he was seated a short time later. He said, "It was 16 December at 2. 30 pm." I said, "What was the meeting about?" I saw Mr Eastman look at Mr Walker and Mr Walker said, "I have no objections." He said, "I made representation about an assault I'd been charged with on Mr Russo." I said, "I've been informed that at the conclusion of the meeting, you refused to shake Mr Winchester's hand when it was offered to you. Is that right?" He said, "Yes, I did not shake his hand." I said, "I've also heard that you said, "I will not shake your hand until you have fixed it." He said, "No, I think I said something like, 'It's not a time to shake hands until it has been resolved." I said, "Did the meeting you had with Mr Winchester make you feel angry towards him?" He said, "No, more upset than angry." I said, "Why did it upset you?" He said, "I felt that he had just .fitted me in for 30 minutes and nothing would happen after the meeting." Thomson said, "Can you tell us what you did last night?" He said, "I was out driving." Thomson said, "Where did you got to?" He said, "I just drove around. I go for drives quite a lot at night as it relaxes me." Thomson said, "Where would you have gone to last night?" He said, "I don't really remember." Thomson said, "Where do you think you would have gone?" He said, "I go out each night to buy takeaway food, either a hamburger, a bucket of chips or a milkshake." I said, "What time do you normally go out at night?" He said, "Any time, depends when I am hungry. If I'm hungry at 11 at night, I will go out and buy a bucket of chips and a newspaper. I don't go to sleep until about 2 each night and I don't watch TV." Thomson said, "Did you get something to eat last night?" He said, "I may have. I don't remember." Thomson said, "If you had bought some last night, where would it have been from?" He said, "It could have been Lonsdale Street, sometimes I go to George’s or the Honey Bunny at Queanbeyan. It just depends where I'm hungry." Thomson said, "Where did you drive to last night?" He said, "I can't remember last night as I drive every night.” I said, "When you drive, where do you normally go to?" He said, "Sometimes to Mount Ainslie, as it is a nice view at night; to Queanbeyan along past the airport, as it is a nice drive; also sometimes I go out the road past the back of Mount Ainslie and up to Federal Highway. I then - I turn left and come back along Northbourne Avenue." I said, "Did you go to any of those places last night?" He said, "I may have, I can't remember.” Thomson said, "What time did you go out last night?" He said, "I don't remember. It could have been any time." Thomson said, "It is important that you try and remember what time you went out and where you went to last night as this is important.” He said, "I know it is important." Thomson said, "It is only last night. It is not like it was last week or a month ago." He said, "I'm trying to remember, but if I told you any more, it might not be correct." Thomson said, "Was it dark when you went out?" He said, "I'm not sure, but I seem to remember that it was about 10 when I got home." Thomson said, "What time would you have gone out?" He said, ''Around sundown. It could've been 8 o'clock." Thomson said, "Can you remember where you went to last night?" He said, "No." Thomson said, "Did you go to Woden last night?" He said, "I may have as I sometimes go to the caravan at the BP for takeaway." Thomson said, "Do you remember speaking to or seeing anyone last night?" He said, "No, I don't." Thomson said, "Was anyone with you last night?" He said, "No." I said, "What sort of car do you own?" He said, "A Mazda 626." I said, "What is the registration of the vehicle?" He said, "YMP-028 ". I said, "Do you own a firearm?" He said, "No, not me." I said, "Have you ever had a firearm registered in your name?" He said, "No, never.” I said, "Have you had any contact with Mr Winchester since the meeting?" He said, "I got a letter in relation to the meeting." I said, "When did you get the letter?" He said, "20 December." I said, "Have you had any other contact with Mr Winchester?" He said, "No." Thomson said, "Have you tried to see him?" He said, "No." Thomson said, "Have you contacted his secretary, or anything like that?" He said, "No." I said, "What do you do for a living?" He said, "I'm a retired public servant.” Thomson said, "Do you receive a pension?" He said, "Sort of. I get a superannuation pension, but I'm trying to get back to the public service." I said, "Do you know where Mr Winchester lives?" He said, "No." Thomson said, "You've not satisfied us with the answers that you have given about your movements last night. We will be making other inquiries and it is most likely the police will have to speak to you again." He said, "Fine." Thomson said, "Thank you for your help." Detective Thomson and I then left the premises and returned to City Police Station. We then carried out further inquiries in relation to the matter."
In the course of the defence response to the prosecution opening (‘the defence response’) in the present trial, Mr Georgiou on behalf of the accused stated (on 20 June 2018 at T139) as follows:
Mr Eastman spoke to Detectives Thompson and Jackson on 11 January 1989. Now, in general terms that conversation is not in issue. But there are many factors that you should consider in relation to that conversation in relation to Mr Eastman's responses to those officers, including Mr Eastman's previous dealings with police, including his ill-feeling towards certain members of police, and bear in mind Mr Eastman was the person who went to the police station in late December of 1987 to complain of having been assaulted by Mr Russo and in turn he was the person charged.
So these are the types of factors you will need to take into account when you have regard to the conversation. Likewise, with respect to his discussion with Detective Ninness on 18 January 1989 and the criticisms the prosecutor made of what Mr Eastman said to Detective Ninness. Have regard to what was going on at that time. The police in full force had descended on his flat, executed a search warrant, seized his car and the prosecution say, "Well, he could have spoken to the police then."
Well, these are the factors that all have to go into the bowl to consider the evidence the Crown say effectively amounts to a lie. Have a look at his relationship. Consider his relationship with the police, his unhappy dealings with them. You might wonder and understand why he might have been circumspect in talking to the police.
It is argued by the prosecution that what was said by Mr Georgiou in the defence response, to the effect that the history of relationships between the accused and police may explain his responses to Detective Constables Jackson and Thomson, has never been said before. Furthermore it is argued that it is inconsistent with the position that the accused has always maintained, both in letters from his solicitors, and in his trial evidence, that his responses on 11 January 1989 were the truth, and were his best recollection.
The prosecution seeks to adduce the following passages of evidence –
(a)T 4659.33-36
All right. Well, if I can take you now to the events of 11 January 1989 where you were spoken to by police at your premises where they, in effect, asked you what you were doing on the evening of Mr Winchester's death. Do you remember those conversations?---Yes, I do. I remember it. Mr Walker was my solicitor at the time. The charge which I believe Senior Constable Coutts had played a role in having falsely laid against me as the victim of the assault was due to, I think, either be mentioned or be heard in a few days’ time.
(b)T 4660.19-24
And they again in summary asked you where you were on the night of Mr Winchester's death?---That's correct.
Now, do you recall giving them an explanation as to where you were?---Yes, I told them that exactly to the best of my recollection where I had been.
(c)T 4661.31-43
Well, do you recall that the police asked you where you were and you gave answers along the lines, that you couldn't remember, or you might have been somewhere or you may not have been somewhere. Was there any reason why, on that occasion, you weren't more specific?---No, the only reason was I couldn't be more specific.
All right?---I had adopted a practice for something like 10 to 15 years, of going out and having take-away food, virtually every night of the week, buying a newspaper, having a drive up Mount Ainslie or Black Mountain, or Red Hill, have a look at the city lights, munch a hamburger and drive home, and I'd done this virtually every night and I would have known every single take-away food van or late night hamburger joint in the whole of Canberra or Queanbeyan, and you know, I gave the truthful answer.
(d)T 5456.20-22
I understood that they said they were conducting routine investigations. That was the purpose of their visit. I had no reason to think otherwise.
T 5457.12-18
Mr Jackson said you said to Mr Winchester, "I will not shake your hand until you have fixed it". You corrected him and said, "No, I think I said something like, it's not a time to shake hands until it has been resolved." Now, do you agree with me that that is a very trivial difference?---If I said that I don't know what was in my mind at the time, but obviously I felt that since the police were there conducting routine inquiries, nevertheless, you should be as accurate as possible.
(e)T 5459.24-27
And you seriously say that you could not recall one night after the next whether you had eaten at home or gone out and got some take away?---No, I could not recall - whatever evidence I gave at the time was to the best of my recollection.
(f)T 5461.28-30
All right. Well, let's assume that's what it referred to. Why were you unable to remember?---For the simple reason the matter is so trivial and I was in the practice of going out every night.
(g)T 5462.40-5463.2
Well, I don't recall the details of the conversation but I certainly can recall police officers coming announcing that they were making inquiries into this matter and I certainly endeavoured to give answers as accurately as I possibly could.
(h)T 5463.19-21
That was a lie, wasn't it, Mr Eastman?---I've already told you that throughout the whole visit by the police officers I gave answers to the best of my ability.
(i)T 5476.33-38
I suggest to you that you knew very well where you were on the 10th and you could have easily have given it, at both on the 11th or on the 12th?---No. For the reasons I've already explained to you, Mr Adams, I gave answers to the best of my ability.
As is apparent, each of those questions and answers referred specifically to the discussion had by Detectives Jackson and Thompson on 11 January 1989.
It is submitted by Mr Thangaraj that the above passages of the evidence of the accused given at the first trial, make it clear that the accused has never suggested that his response to police on 11 January 1989 was in any way related to his previous dealings with police, or in any way connected with his ill-feeling towards certain members of the police force. Rather, it is submitted that the answers given by the accused reflect the position taken by the accused that what he said to the police on 11 January 1989 was truthful, as accurate as possible and based on his endeavours to give answers accurately and to the best of his ability. It is submitted that the defence should not now be permitted to argue before the jury that the response of the accused reflects the dealings previously had with police or his ill‑feelings towards police.
In response Mr Georgiou argues that nothing was said in the defence response which contradicts the evidence of the accused, given at the first trial, and that what he told police was the truth. Mr Georgiou submits that the brief paragraph in his opening statement, upon which the prosecution relies, was in response to a lengthy and detailed opening address by Mr Thangaraj.
There can be no doubt about the way in which the prosecution puts the conversation had between the accused and Constables Thomson and Jackson on the afternoon of 11 January 1989. It puts it clearly that its case is that the accused lied when he told police that he could not recall where he was the previous night, and that he could not remember if he had got something to eat the previous night.
Although in the course of submissions Mr Georgiou argued that his statement in the opening related, and responded, to the totality of events which took place on 11 January 1989, and 12 January 1989 when Detectives Connolly and Brisbane attended at the accused’s residence, as well as discussions had by the accused with Mr Ninness upon the execution of the search warrant on 18 January 1989, the fact is that the prosecution relies upon the discussion of 11 January 1989 alone in its argument that the accused displayed a consciousness of guilt. It does not rely upon anything said on 12 January or 18 January in that regard.
Furthermore it is apparent, that whilst the factors of the accused’s relationship with police and his ill‑feeling towards police might well be relevant to his dealings with police subsequent to 11 January 1989, his evidence, given at the trial, is clear. That evidence is that he, in effect, did all he could to be accurate to the best of his ability when he spoke to police on 11 January 1989. His evidence was not that by reason of his previous dealings with police he was circumspect in talking to police on that day. It was quite to the contrary.
It is true that, as is apparent from the section of Mr Georgiou’s defence response, quoted above, he did deal with the subsequent conversation between Detective Ninness and the accused on 18 January 1989 in a similar vein to the manner in which he dealt with the meeting on 11 January 1989 between the accused and police. However, a reading of his remarks relating to the discussion on 11 January 1989 makes it clear and beyond argument that in relation to ‘that conversation’, he argued that the responses of the accused to Detectives Thomson and Jackson should be considered by the jury in the light of his previous dealings with police, and his feelings of ill‑will towards them.
18. This argument is entirely inconsistent with the evidence given at trial by the accused as to his discussion with those officers. In the circumstances I agree with the submissions of Mr Thangaraj that to leave that argument before the jury without having heard the previous evidence of the accused as to that precise matter, would be liable to mislead the jury and would give the defence an unfair tactical advantage in relation to this issue.
Accordingly I rule that the passages sought to be relied upon by the prosecution which were the subject of the evidence of the accused at the first trial as to what he said to Detective Constables Jackson and Thornton on 11 January 1989 are admissible.
(b) Where Mr Eastman would park when he was inspecting a gun
I turn now to the second issue upon which the prosecution argues that evidence of what the accused said previously should now be admitted into evidence. As stated above, the topic relates to the cross‑examination of Mr Lenaghan, Mr Thompson and Mr Ingle. In this regard it is to be observed that in this trial, as in the first trial, the defence concedes that it was the accused who purchased the Lenaghan rifle, but there is no direct concession by the defence that it was the accused who attended upon Mr Thompson or Mr Ingle.
This topic relates to cross‑examination of the witnesses relevant to the Lenaghan Ruger, as well as to the cross‑examination of Mr Thompson and Mr Ingle in relation to the Ruger that Mr Thompson had for sale. It is argued by the prosecution that in contradistinction to the position adopted by the accused at the first trial, there has been an attempt to suggest that the accused did not park away from the homes of gun sellers, and with respect to Lenaghan, possibly did not turn a corner. The prosecution relies upon the following extracts of transcript in this trial:
(a)See T 692-3 (Lenaghan) at T 692 (line 41-48)
Where did the man walk to after that?---In between 2 and 5 there's a laneway there, he went down that.
Are you sure he went down the laneway or might it be that he continued up Leggatt Street?---No, he went down the laneway.
What does that laneway lead to? We see a number 3 there?---There's a BMX track down there somewhere.
(b)T 806.39-43 (Thompson) and
You didn't see how the man arrived or left the house, did you?---That's right.
So - - -?---I saw him walk to the door. There was no car out the front.
But you don't know whether he was just parked a little up the street?---Yes.
(c)T 813.27-33 (Ingle).
So for all you know, the man could’ve been parked nearby?---Well, there’s a lot - there’s windows across the front of the house. I didn’t see any headlights or anything coming up the - I was in the lounge room at that time, so I didn’t see any headlights coming in to the driveway at all.
But you had no reason to be looking out for that at the front, did you?---No. Not really, not.
On this basis the prosecution seeks to adduce into evidence the following extracts from the transcript of the first trial:
(a)T 4934.24-26 up to ‘corner’
Do you recall whether you went on foot to a number of these places where you inspected firearms, catch a cab, bus or what?---No, I drove there but I parked my car around the corner
(b)T 5055.11-17 up to the word ‘sight’ in the answer (Lenaghan)
Where was your car?---I think it was a loop street and it was further round the loop of the street.
Out of sight?---Yes, it was out of sight
(c)T 5130.25-33 (Thompson)
On each of these occasions you did not park your car out the front, is that right?---I've already readily conceded that I was concerned about being prosecuted for purchasing a firearm unlicensed and - - -
On these particular occasions you did not park your car out the front?---I would imagine I wouldn't have done so - - -
So, you parked it - - -?---- - - for the same - the same reason I've stated previously.
Accordingly, the evidence of the accused was clear, in relation to the Lenaghan rifle, that he parked his car around the corner and out of sight. It is perhaps less clear in relation to his attendance at the Thompson house as he did not at the first trial unequivocally accept that he attended at that house, although he accepted that if he did he would have parked away from the house. It is thus contended by the prosecution that there is a clear inconsistency between the evidence given at the previous trial and the puttage to Messrs Lenaghan, Thompson and Ingle.
In response, Mr Georgiou argues that the questions asked of those three witnesses were not an attempt to suggest that the accused did not park away from the house of gun sellers. Mr Georgiou argues that the questions asked were not of the nature of contesting the evidence of the witnesses. He submits that the questions asked did no more than test the evidence of the witnesses.
In the case of Mr Lenaghan, Mr Georgiou submits that the question asked by him did no more than enquire as to where the accused went and did not suggest that the accused had parked close to Mr Lenaghan’s house. As to the question asked of Mr Thompson, the question asked was ‘But you don’t know whether he was just parked a little up the street?’. It is submitted that that question did not suggest that the accused had parked outside the house, but rather that he had parked a little up the street. In the case of the question asked of Mr Ingle being ‘So far all you know, the man could have parked nearby?’, it is argued that question went to Mr Ingle’s observations and was not a puttage that the car of the man who attended at that time was parked nearby.
Furthermore, Mr Georgiou submits that the accused at no stage conceded that he attended upon the home of Mr Thompson or that he went to that address on a second occasion and met Mr Ingle. Thus it is argued that the questions asked in relation to the three witnesses in question are questions testing the prosecution case and the complaint made by the prosecution is not made out when regard is had to the proper context of the cross-examination.
In my view the submission made by the prosecution has weight. The whole point of the cross-examination of each witness was to suggest that the car was not parked away from the premises in question, or to demonstrate that the car was not deliberately hidden. It is submitted on behalf of the accused that such questions were put merely to test the prosecution case. I accept the submissions of Mr Thangaraj that asking questions which were inconsistent with the evidence given by the accused at trial is not testing the prosecution case but is running a different case in defence. Obviously, based on those questions and answers, the defence can put to the jury the submission that there is no basis for the prosecution to suggest that the accused was seeking not to have his car observed. One must assume that was the intention of the questions asked and if it was not the intention, it is clearly the result. Furthermore, I accept the submission of the prosecution that it is not to the point whether or not the accused conceded or remembered going to the Thompson’s household, on one or two occasions. The fact is that if it was the accused who attended at the Thompson premises the witnesses have been asked questions to suggest that the accused might have been parking somewhere nearby and that is contrary to the evidence given by him at the first trial.
For the above reasons the passages sought to be relied upon by the prosecution as to this matter are admissible in the prosecution case.
(c) What Mr Eastman wanted when meeting with Mr Neil Brown
In this regard the prosecution submits that in the course of the cross‑examination of Mr Brown in this trial it was suggested that the accused did not tell Mr Brown that he wanted to see Mr Winchester to have the charge against him dropped, whereas the accused at the first trial said (at T5451.14) that –
I wanted, as I said in the notes that I prepared for Mr Brown for there to be a review of all the evidence in the matter to see who, if anybody, should be charged and I wanted not just the charge against me to be dropped but I wanted Mr Russo to be charged.
The prosecution refers to cross‑examination of Mr Brown and submits that ‘the suggestion was that Mr Eastman was happy for both he and Mr Russo to be charged’. The question actually asked of Mr Brown at T583.3 was:
In relation to his request to you that an appointment be made to speak to Mr Winchester, he was not saying to you that he wanted to see Mr Winchester to have the charge dropped but rather, he wanted Mr Winchester to investigate his complaint about the police's failure to investigate properly the assault matter?
It is argued that this is inconsistent with the evidence of the accused at the first trial and the prosecution therefore seeks to adduce the evidence at T 5451.14 where Mr Eastman said that he wrote to Mr Brown to say he wanted his charge dropped and for Russo to be charged.
Before turning to the cross‑examination of Mr Brown, it is necessary to observe that in the course of the prosecution opening address a letter from the accused to Mr Brown dated 30 November 1988 was tendered as Exhibit C103. That letter contained, as a postscript, a note from the accused stating:
The purpose of the interview would be to get Mr Winchester to agree to review all the evidence, including that evidence detrimental to Mr Russo and his mother which the investigating officers have hitherto excluded, and then to make a fresh decision as to whether there is a prima facie case, and if so, against whom.
At page 583 of the transcript in this trial Mr Georgiou in effect put to Mr Brown the contents of the postscript in the following terms:
In relation to his request to you that an appointment be made to speak to Mr Winchester, he was not saying to you that he wanted to see Mr Winchester to have the charge dropped but rather, he wanted Mr Winchester to investigate his complaint about the police's failure to investigate properly the assault matter?
Mr Brown’s response was as follows:
I think it was probably both, that's the impression I had, in the sense that a proper investigation of the complaint that he made would itself sort of set loose the forces that would have the correct person charged, namely Russo, and, as I said before, and/or him, if he was going to remain charged that Russo would also be charged. But, yes, you're right in suggesting, if you are, that one of the objectives, your Honour, was that the complaint would be investigated, but I think the end objective of that, as I understood it, was that he would no longer be charged or, as an alternative to that, Russo would also be charged as well as him.
In my view the cross‑examination of Mr Brown is not inconsistent in any way with what the letter of 30 November 1988 from the accused to Mr Brown states, nor is the evidence of the accused at the first trial so inconsistent with what Mr Georgiou put to Mr Brown that the accused’s evidence at first trial in this regard ought to be permitted to be now led in evidence.
Mr Georgiou points out, and I think correctly so, that the questions he asked generally mirrored the letter sent by the accused to Mr Brown dated 30 November 1988 and which was tendered by the prosecution as C103. The passage of evidence of the accused upon which the prosecution seeks to rely is, I consider, really evidence of the accused giving his recollection of what he had written to Mr Brown about the proposed meeting with Mr Winchester. As submitted by Mr Georgiou the best evidence is the letter exhibited as C103.
36. I do not consider the evidence sought to be introduced by the prosecution in relation to this issue should be admitted into evidence.
(d) The hearing of the Russo charge being on 12 January 1989
The prosecution seeks to adduce into evidence, evidence given by the accused about police coming to his flat on 11 January 1989 (at T5475) that:
After the police left, my recollection is that Mr Walker and I put the matter completely out of our minds and we proceeded with the preparation for the court appearance concerning Mr Russo.
The application made by the prosecution can be summarised in short compass. Questions have been put on behalf of the accused to a number of witnesses about the status of the hearing date of 12 January 1989. For example, the following cross‑examination of Dr Roantree took place:
Mr Eastman had told you, had he not, that his solicitor would be adjourning the matter on 12 January so that further representations could be made?---I recall something of that nature, yes.
Mr Thangaraj argues that although it is clear that an application was made for an adjournment on 12 January 1989, the issue in question is ‘at what point did the accused believe the case might not proceed on 12 January 1989’? Mr Thangaraj submits that the evidence given at the first trial by the accused was that after the police left his flat on 11 January 1989 he and his solicitor Mr Walker ‘proceeded with the preparation for the court appearance the following morning’. Mr Thangaraj argues that this evidence of ‘preparing for hearing the next day’ is relevant to the issue of the accused having a state of mind that the hearing was to proceed the next day.
First, it should be observed that the passage of the evidence given at the first trial relied upon by the prosecution does not contain the word ‘hearing’. The words used are ‘preparation for the court appearance concerning Mr Russo’. The preparation could have involved discussion about an adjournment, discussion about whether or not to consent to the summary jurisdiction of the Magistrates Court, or any number of other matters.
In my view, the evidence of the accused given at the first trial is not so inconsistent with the matters that have been the subject of puttage by Mr Georgiou that the prosecution should be entitled to rely upon such evidence in this trial.
(e) The offer to purchase the Thompson Ruger
This topic relates to cross examination of both Mr Thompson and Mr Ingle to the effect that they were not certain that the accused had visited their property. In addition it was put to Mr Pattenden that Mr Ingle did not identify the jacket seized from Mr Eastman.
The prosecution relies upon the cross‑examination by Mr Stanton of both Mr Thompson and Mr Ingle to the effect that they did not positively identify the accused as the person who visited their property, and furthermore, upon the cross‑examination of Mr Pattenden to the effect that Mr Ingle did not identify the jacket worn by the accused from the ‘line‑up’ of jackets. The prosecution seeks to rely upon the evidence of the accused (at T5125.16‑18) as follows:
And you made an offer to purchase the gun for $200?---Well, if Mr Thompson says so that's quite possibly the case, but I didn't purchase.
The first submission made by Mr Stanton in respect of this issue is that the question and answer sought to be relied upon is taken out of context. It is submitted by Mr Stanton that when the whole of the context of the cross‑examination of the accused at the first trial, as to visiting Mr Thompson’s house and speaking to Mr Thompson on the first, and Mr Ingle on the second, occasion is considered, the accused did not make any admission of having attended the Thompson premises.
Mr Stanton relies upon the cross‑examination of the accused at the first trial at T5120 where in the course of cross‑examination the accused claimed to have no memory of any conversation he had had with Mr Thompson and stated that he had no specific recollection of going to Mr Thompson’s house.
In the end result it appears to me that despite the answer relied upon by the prosecution, the balance of the answers given by the accused in his cross‑examination makes it clear that there is no direct admission of having seen Mr Thompson or Mr Ingle. Standing alone the answer given by the accused referred to above is out of context and may mislead the jury as to whether or not the accused did admit to having made an offer to Mr Thompson.
In those circumstances, I do not consider the evidence in question should be admitted.
(f) Extracts from the listening device material
This topic relates to certain extracts of the listening device material. In the light of the cross‑examination of Professor French, the prosecution seeks to adduce the following, in the form below:
(a)‘With respect to TAB 005 Mr Eastman has given evidence on oath about this extract. He has listened to the passage ‘Shot, but why did (he/they/I) do it’ and has previously given evidence that what he hears is ‘Shot, but why did you do it’. Mr Eastman did not suggest in his evidence that the word ‘Shot’ was said by a commentator, or someone else on the television.’
(b)‘With respect to TAB 003 Mr Eastman has given evidence on oath about this extract. He previously gave evidence that he had listened to this passage many, many times. At no point did Mr Eastman say that the word ‘kill’ could have been, or was, the word ‘kissed’.’
From page T2938 onwards in the course of the trial before me, Professor French was cross‑examined in detail about his evidence that TAB 005 contained the statement ‘Shot, but why (he/they/I) do it …’. It was put to Professor French that there was difficulty in relation to that entry because there was a broadcast in the background. Professor French agreed and stated that it sounded like a soccer game. It was put to Professor French that he could not exclude the possibility that the word ‘shot’ could be from an external source, whether it was television or radio.
In relation to this puttage the prosecution argues that when the accused gave evidence at the first trial, and during the course of examination in chief, he was asked about this phrase. At the time of the first trial, the jury had available to them a series of transcripts prepared by a Ms Lawson and Messrs McQuillen and Storen, together with one prepared by Dr French. In addition transcripts prepared by a Mr Mills and a Dr Butcher were put before the jury on behalf of the accused. Mr McQuillen, Dr French and Ms Lawson gave evidence on behalf of the prosecution as to their construction of the words on the tapes, and Mr Mills and Dr Butcher gave evidence in this regard on behalf of the accused.
The accused also gave evidence as to his version of the words on the tapes. The tapes which were played to the jury were parts of the digital audio-tape of the master tape, and the enhancement digital audio‑tape prepared by Professor Kunzel and Dr Braun.
These tapes are the same as those which have been played to the jury in the current trial. In addition, in this trial there has been a further tape played. This tape is an enhancement by the AFP of the Digital Master Tape. That latter tape, together with the earlier tapes, has been used by Professor French to produce his 2018 transcript.
I have examined the transcript of the evidence given by the accused at the first trial. The accused gave evidence that he had listened to the tapes (i.e. the Kunzel/Braun enhanced tape) before giving his evidence. It had been played in Court before the jury but clearly the accused had had access to it and said that he had played it to himself many times before giving evidence. Obviously he did not listen to the AFP enhanced tapes which did not exist at that time. It does appear clear that the jury had only the Kunzel/Brawn tapes played to them. (See T3987-3988). It is not clear from the transcript whether or not the accused had access to the master tapes although I consider it likely that he did, the provision of such tapes to his legal advisors being an obligation of the prosecution. Whatever the position as to the master tapes it is apparent that the evidence given by the accused as to his listening of the tapes is related to the Kunzel/Brawn enhanced tapes, which tapes of course have been played to the jury in the present trial.
In the course of the examination‑in‑chief of the accused at the first trial (at T4992.2) he was taken to the passage in question by Mr Terracini as follows:
Q:Now, I'll take you, first of all, to 16:47?
A:Yes, 16:47. Yes, I've listened to this passage and what I hear is, "Shot, but why did you do it?" I don't hear the vowel sound, "I" at all. "Shot, but why did you do it?" And then the phrase, "Because I was frightened." I hear nil there; not indecipherable, but I hear nothing whatsoever, and I've listened to it several times and endeavoured to pick up the words, "Because I was frightened", and I cannot hear them at all, or anything like that, or anything.
Q:Yes. 17:14, what do you say about that passage?
A:Yes, could I just say that if I had to guess now, I have no recollection, but if I had to guess what the sentence, "Shot, but why did you do it", what it means, it would be addressed to Commander Ninness, or the police in general or to the New South Wales police or to whoever was responsible.
55. The prosecution argues that in the course of giving this answer the accused did not suggest that the word ‘Shot’ was said by a commentator or someone else on the television or the radio. As stated above, it is apparent from a reading of the evidence given by the accused at the first trial that the accused had listened to the Kunzel/Braun tape. He stated that he had listened to it ‘umpteen times’ with headphones on in his unit (T5452).
56. Turning now to the issue of the puttage by Mr Stanton to Professor French that the word ‘killed’ could be ‘kissed’, there are two relevant pieces of cross‑examination. The first is at T2929 of the transcript when Professor French agreed with Mr Stanton that an artefact could considerably distort a word on the original recording so it sounded like another word. Professor French agreed that the danger of that was particularly acute in terms of sibilants. Professor French agreed that the word ‘kissed’ contains a sibilant. Subsequently Mr Stanton questioned Professor French as to whether the entry at 19.24, being ‘The first man I ever killed’, could in fact be a different word, such as ‘kissed’.
57. The prosecution argument is that the accused gave evidence on oath ‘about this extract’ and that, despite giving evidence that he had listened to this passage many times, at no point did he say that the word ‘killed’ could have been, or was, the word ‘kissed’.
58. In response Mr Stanton submits that it would be unfair to permit the prosecution to adduce the two passages in issue before the jury. Mr Stanton argues that it is clear that any responses of the accused given at the first trial are not in response to the transcript upon which the prosecution relies in this trial. The transcripts provided to the jury at the first trial differed in a number of respects from those now relied upon by the prosecution as an aid to assist the jury.
Mr Stanton submits that there are significant problems with the manner in which the prosecution seeks to rely upon the listening device material which result in unfairness to the accused. The first of these, he argues, is that the transcripts which are now before the jury are those produced by Professor French in 2018. It is submitted that in relation to the responses of the accused to the audio relied upon at the first trial, he was not responding to the transcripts that Professor French has provided for this trial. The second matter upon which Mr Stanton relies is the contention that, in giving his evidence at the first trial, the accused was ‘guessing at what was contained in TAB 003 and TAB 005’. In this regard he relies upon the fact that at the first trial the accused professed to have no memory of the matters in question. The accused stated at T4983 that:
…. I have got absolutely no direct recollection of any of these matters and the first transcripts were not made available to me until many, many months after the recordings were allegedly made and, you know, you wouldn't expect any person to remember such things.….
60. Finally, the defence argues that it is entitled to test the evidence given by Professor French as to his transcripts and that such questions as were asked do not enliven the evidence given by the accused at the first trial, particularly in circumstances whereby the evidence of the accused was in response to different transcripts and, in respect of the Kunzel/Braun tapes, particularly in circumstances whereby the AFP enhanced tapes are now relied upon by the prosecution as well as the Kunzel/Braun tapes.
61. In response Mr Thangaraj, for the prosecution, argues that the version of the transcripts that the accused was responding to is not relevant. It is submitted that the accused, more than anyone, is in a position to interpret his own voice. Furthermore, it is submitted that in addition to interpretation, the accused has knowledge, in that he ‘knows facts which underlie parts of the listening device material’ and that he knows facts which underlie the cross‑examination of Professor French.
62. Dealing first with the extract from TAB 005, the evidence given by the accused (at T4992) at the first trial is clear. He stated that he had listened to the passage and that what he heard was ‘Shot, but why did you do it?’. In the next answer he repeated what he had heard on the tape as being ‘Shot but why did you do it?’ and provided an explanation that the statement was likely to have been addressed to Commander Ninness. These answers did not depend upon the transcript. They were, as he said, based upon what the accused heard on the taped recordings he listened to. In any event, the transcript of this passage relied upon at the first trial differed only slightly from the transcript produced by Professor French at this trial. The transcript which related to this passage at the first trial stated “Shot, but why did I do it?’. The accused made it clear that he did not hear the word ‘I’ but instead heard the word ‘you’. The transcript that has been prepared by Professor French for this trial after listening to the enhanced AFP tape is ‘Shot, but why did (he/they/I) do it?’. Such slight difference as there is does not relate to the word ‘shot’ which is the issue in contention before me.
63. In my view, in such circumstances there is considerable weight in the argument advanced by the prosecution that the accused knows his own voice. His evidence was clearly that he heard the word ‘shot’. The accused was not relying on the transcript. He was stating what he had heard himself say on tape. The suggestion in cross‑examination of Professor French that the word ‘shot’ might have come from background commentary was inconsistent with the plain evidence given by the accused at the first trial. That inconsistency is not explained by different transcripts, nor is it explained by the fact that a further enhanced version of the tape came into existence subsequent to the evidence of the accused at the first trial.
64. In my view the issue of different transcripts is not a concern of relevance. As stated above, it is clear, from the transcript of the evidence given at the first trial that the evidence given by the accused was evidence based upon what he heard on the tape. However that is not the end of the matter. The next question to be considered is whether there is any unfairness to the accused caused by the fact that the prosecution seeks to rely on the AFP enhanced tapes, as well as the Kunzel/Braun tapes upon which the evidence given by the accused is based.
65. I have listened carefully to both tapes again in consideration of this issue. I have in the course of consideration of this ruling listened to the relevant extract from TAB005 on the Kunzel/Brawn tape which has been played to the jury and compared it with the AFP enhanced tape which has also been played to the jury. Clearly if the AFP enhanced tape threw a different light on what was allegedly said by the accused, or there was reason to believe there was any difference of substance between the two tapes, it would unfair to admit the evidence of the accused from the first trial as to TAB 005. However, having listened carefully to both tapes, I am satisfied that no such unfairness ensues. Of course, it is a matter for the jury as to what they hear on the tapes, but they would be entitled to draw the conclusion that, if anything, the words used by the accused are reproduced with slightly greater clarity on the AFP enhanced tape.
66. That said of course, it needs to be made clear to the jury, if the accused’s first trial evidence is admitted into evidence, that his response was based upon the Kunzel/Braun tapes that were played in court on the previous occasion, and of course are identical with the Kunzel/Braun tapes presently before them as evidence in this trial. Subject to that, I conclude that the evidence given by the accused at the first trial in relation to TAB 005 is admissible.
67. I turn now to the argument relating to TAB 003 which I consider is somewhat more complex than the argument relating to TAB 005. The first issue of course is that the prosecution seeks to rely upon something that the accused did not say, which is a different circumstance altogether from a positive assertion, as is the case with TAB 005.
68. The examination‑in‑chief of the accused in relation to TAB 003 (the transcript of which was Exhibit 255 in the first trial) commenced at T4984. In the course of cross‑examination about the passage in question (i.e. the transcript at that time reading ‘He was the first man, he was the first man I ever killed ….’) the accused said:
Yes, I've listened to this passage many, many times including again most recently this morning before coming to court and the best that I can make out of it is that it starts off, "Fat man," and that it then goes on, "she's the first one I ever could," and then after that I frankly do not hear anything at all.
69. Accordingly, in his answer the accused suggested that the word ‘killed’ could be the word ‘could’. It is true that the accused did not then suggest that the word ‘killed’ could be kissed. However, subsequently, and in relation to TAB 007 which of course is no longer relied upon, the accused did at T4996 in relation to the word ‘killed’ say it could be kissed.
In my view it is far from clear to say that the evidence given by the accused in relation to TAB 003 is inconsistent with the cross‑examination of Professor French. I consider that Mr Stanton was entitled to test the evidence of Professor French in the way that he did, without rendering the evidence given by the accused at the first trial admissible. Accordingly I rule that the evidence of the accused in relation to TAB 003 sought to be introduced into evidence by the prosecution is not admissible.
Orders
71. Accordingly I make the following orders:
(a)The passages sought to be relied upon by the prosecution at the first trial at T4659.33-36; T4660.19-24; T4661.31-43; T5456.20-22; T5457.12-18; T5459.24-27; T5461.28-30; T5462.40-T5463.2; T5463.19-21 and T5476.33-38 are admissible.
(b)The passages sought to be relied upon by the prosecution at T4934.24-26 up to the word 'corner', and at T5055.11-17 up to the word 'sight' in the answer (Lenaghan); and at T5130.25-33 (Thompson); are admissible.
(c)The passage of evidence upon which the prosecution seeks to rely at T5451.14 is not admissible.
(d)The passage of evidence upon which the prosecution seeks to rely at T5475.13 is not admissible.
(e)The passage of evidence upon which the prosecution seeks to rely at T5125.16-18 is not admissible.
(f)The evidence of the answer given by the accused to the question addressed to him by Mr Terracini in relation to TAB 005 at T4992.2 that ‘Yes 16.47. Yes, I’ve listened to this passage and what I hear is ‘Shot, but why did you do it?’ is admissible.
(g)The evidence of the accused given at the first trial in relation to TAB 003 is not admissible.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 17 September 2018 |
0