R v Eastman (No 49)
[2018] ACTSC 320
•14 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 49) |
Citation: | [2018] ACTSC 320 |
Hearing Date: | 12 November 2018 |
DecisionDate: | 14 November 2018 |
ReasonsDate: | 5 December 2018 |
Before: | Kellam AJ |
Decision: | The defence’s application seeking a specific direction that the accused has suffered forensic disadvantage by reason of various factors is dismissed. |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Direction to jury – application that trial judge make direction that the accused has suffered forensic disadvantage |
Legislation Cited: | Evidence Act 2011 (ACT) ss 67, 165(5), 165B |
Cases Cited: | Longman v R (1989) 168 CLR 79 |
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: | SCC 111 of 1992 |
Kellam AJ:
By written submissions contained in a letter addressed to my Associate dated 7 November 2018 from the solicitor for the accused, the defence sought that I give the jury a ‘forensic disadvantage direction’ in relation to a number of matters.
By written submissions dated 9 November 2018 the prosecution responded to the defence’s submissions contained in the 7 November 2018 letter. On Monday 12 November 2018, and after I had commenced my summing‑up to the jury, I heard oral argument from the parties in respect of the application made by the defence for the direction in question.
On the morning of 14 November 2018 I advised the parties that I would not make the direction sought by the defence and that I would provide written reasons for that ruling in due course. These are those reasons.
The defence’s application for a direction to be made that the accused had suffered a forensic disadvantage was not based upon any statutory provision in the Evidence Act 2011 (ACT) (the ‘Act’). The prosecution argued that the defence had not provided any statutory or common law basis for such a direction. The prosecution argued that the only statutory basis for such a direction is contained in s 165B(2) of the Act and arises in circumstances whereby ‘the defendant has suffered a significant forensic disadvantage because of the consequences of delay’. In a criminal proceeding in which there is a jury, that section requires that the judge must, if he or she is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
Sub‑section 165B(3) of the Act provides that the judge need not comply with s 165B(2) if there is a good reason for not doing so. However, it should be observed that s 165B(5) provides that a judge must not warn or inform the jury about any forensic disadvantage suffered because of delay except in accordance with s 165B of the Act. Importantly, s 165B(5) states that ‘this section does not affect any other power of the judge to give a warning to, or to inform, the jury’.
The prosecution submits that the matters raised by the defence do not fall within the terms of s 165B of the Act.
It is appropriate at this time to consider the basis of the defence application. The first issue relates to restrictions placed upon the questioning of certain witnesses by the prosecution and the defence, by reason of orders made by me in R v Eastman (No 33) [2018] ACTSC 23 which decision is the subject of a suppression order.
That matter is unrelated to delay, and in any event has been the subject of specific directions to the jury both in the course of the trial and in my charge.
The second issue relates to the documents or recordings which the defence called for in the course of the trial, but which the prosecution was unable to produce. The defence called for the transcript of the interview between Mr Ninness and [redacted], but the prosecution was not able to produce it. Thus the defence claims that by reason thereof it has suffered forensic disadvantage.
[redacted].
In addition to that matter, the defence relies upon the prosecution’s failure to produce photo‑boards of cars shown to Anne Newcombe and Amanda Little by Detective Drennan on 17 January 1989. Detective Drennan’s evidence is that neither Ms Newcomb nor Ms Little identified the accused’s car at that time, but it is not known as to whether or not the accused’s car was amongst the photographs of cars shown to these witnesses. However, the defence argues that if a photograph of the accused’s car was amongst the photographs shown to these witnesses, then their failure to identify the accused’s car is a matter in the accused’s favour and thus he has suffered forensic disadvantage.
The next issue upon which the accused relies relates to what the defence contends was the failure of the police to investigate and examine the V8 cars linked to [redacted] in January 1989. In this regard the defence argues that it now cannot be known what gunshot residue or other trace evidence linking [redacted] with the crime scene may have been located, or as to whether or not V8 vehicles owned by or accessible to him sounded similar to the V8 heard by Mr Grieve, Mr Rees or Mrs Hinchcliffe.
It is submitted that there is further disadvantage to the accused caused by the failure of the police to obtain a statement as to whether or not [redacted] was at home at the time of the murder of Mr Winchester.
Furthermore, the defence relies upon the fact that there were a large number of witnesses whose evidence was introduced through s 67 notices and submits that a general disadvantage accrued by not being able to cross‑examine those witnesses.
Finally, the defence submits that based on the evidence of Mr Ninness, [redacted]’s telephone was being covertly monitored at the time of the murder, and that no audio or transcript of telephone conversations [redacted] on 10 January 1989 has been produced which, it is submitted, is relevant to determining the truth or otherwise of [redacted]’s alleged alibi.
Conclusions
Dealing first with the argument advanced by the prosecution that there is no statutory or common law basis for a direction of the kind sought by the defence, I accept that s 165B(2) of the Act is specifically related to delay in prosecution. It is apparent that s 165B was introduced to replace the common law direction as to disadvantage caused by delay as required by the High Court in Longman v R (1989) 168 CLR 79 . However, that said, and accepting that there is no statutory provision which requires a warning to be given in circumstances other than where the defence in a jury case establishes that it has suffered substantial forensic disadvantage because of delay in prosecution, I nevertheless conclude that a trial judge does have power to give such a direction in other circumstances.
First, it is relevant that s 165(5) and s 165B(5) of the Act provide that each ‘section does not affect any other power of the judge to give a warning to, or to inform, the jury’. It will be recalled that the basis of the ‘Longman warning’, as it came to be known, was that the fact of disadvantage by reason of long delay in prosecution may not have been apparent to a jury and that required not merely a comment on the part of the trial judge, but a warning (see Brennan, Dawson and Toohey JJ at 90-91).
Similarly, it appears to me that if the accused in a criminal trial can demonstrate a significant forensic disadvantage for reasons other than delay, then the judge should give the appropriate direction as a matter of fairness and also to ensure that the jury has a full appreciation of the danger that such a forensic disadvantage may cause.
Accordingly I turn now to consider whether or not the matters raised by the defence do create a significant forensic disadvantage which justifies a direction being given to the jury to that effect.
First, as to the constraints on the cross‑examination of certain witnesses by reason of the orders made by me, it is to be observed that specific and strong directions were given to the jury, both at the time such witnesses gave evidence and in the course of the summing up to the jury. I do not consider that more needs to be said in relation to that issue.
Secondly, as to the matters relating to the apparent loss of the recording and or the transcript of the conversation in August 1989 had between Mr Ninness and [redacted], it is entirely speculation as to whether or not the accused has suffered a forensic disadvantage. [redacted].
Likewise, the argument that the fact that the first photo‑boards shown to Ms Newcombe and Ms Little on 17 January 1989 cannot be found and this causes forensic disadvantage, is based upon speculation that a photograph of the accused’s car was included in the photo‑boards. That is entirely speculative, taking into account the fact that the accused’s car was not seized until the day after that and, furthermore, in circumstances where there is evidence that photo‑boards shown to Mr Ross and Mr Malachowski did not contain photographs of the accused’s motor car.
Similarly, the apparent failure of the police to examine and investigate V8 cars linked to [redacted], and the failure to take a statement [redacted], are completely neutral. Whilst I will certainly refer to these matters in my summing‑up, and I will inform the jury of the fact that they are matters they can take into account in the assessment of all of the evidence as to whether or not the prosecution has proved the guilt of the accused beyond reasonable doubt, I do not accept that the failings in the police investigation in that regard caused the accused a significant forensic disadvantage.
A further basis upon which the defence submits I should make the direction sought is that, because of the large number of witnesses whose evidence has been given by way of statement, or their evidence was read, pursuant to a notice under s 67 of the Act, the accused has suffered forensic disadvantage by reason of the inability of the defence to cross‑examine such witnesses.
It is indeed true, as I have pointed out to the jury on a number of occasions that the number of witnesses whose evidence has been led in this fashion is, by reason of the history of this proceeding, unusual and requires that evidence to be examined with caution. However, the issue is not to be determined by the volume of this material. Most of such evidence has been admitted into evidence by agreement and, in general, there is no issue as to the contents of that evidence. That said, there are a number of witnesses whose evidence has been admitted after argument before me, and which evidence is very much in issue. That evidence includes the evidence of Mr Barbara, Mrs Klarenbeek, Mrs Webb, Mrs Reid and Mrs Kaczmarowski amongst others. In each of those cases, and in respect of numerous other witnesses, I have throughout the trial and in summing‑up, referred to the possible unreliability of such evidence and the disadvantage suffered by the defence by reason of being unable to cross‑examine the witnesses. I consider that the jury has well understood my directions in this regard and that a further separate direction is not required, taking into account the numerous and strong directions given by me throughout the trial and summing‑up.
As to the submission made by the defence that, based on Mr Ninness’s evidence, [redacted] home telephone was being tapped at the time of the murder, the following matters require to be considered. First, the submission overstates the evidence of Mr Ninness who said that he believed the telephone was tapped, and that the AFP ‘would have a record’. However, the evidence of Detective Dunbar, who reviewed the entirety of the investigation file, particularly in relation to [redacted], did not locate any phone records for him.
Finally, the question to be considered by me is whether, notwithstanding the conclusion I have reached regarding the individual issues relied on by the defence, I should give a separate direction as to any forensic disadvantage suffered by the accused by reason the combined effect thereof.
In the end I have concluded that the directions I have given, during the trial and in the course of the summing‑up, address the concerns raised by the defence and do make clear to the jury that the accused has suffered some forensic disadvantage by reason of the matters raised. That said, I do intend to deal in the course of my summing‑up in a more general way with a number of the matters raised by the defence.
First, I will refer in my summing‑up to the defence’s arguments relating to the alleged failure on the part of the police to investigate or examine the V8 car or cars owned or accessible to [redacted] and the argument that the accused suffered disadvantage by reason of that failure. I will deal in some detail with the defence’s submissions about that, and the failure of the police to seek to take a statement from [redacted], as well as the defence’s submissions relating to the prosecution’s failure to produce the transcript of the August 1989 interview between Mr Ninness and [redacted].
I intend to alert the jury to these matters and although I will direct them not to speculate, I also intend to direct the jury that they are entitled to take these matters into account in consideration of whether or not the prosecution has proved its case against the accused beyond reasonable doubt. I intend to do that in the context of the requirement that the prosecution must prove the accused’s guilt beyond reasonable doubt and that it is not for the accused to prove his innocence.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 5 December 2018 |
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