R v Eastman (No 5)
[2015] ACTSC 376
•9 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 5) |
Citation: | [2015] ACTSC 376 |
Hearing Date(s): | 26 November 2015 |
Date of Orders: | 26 November 2015 |
Date of Publications of Reasons: | 9 December 2015 |
Before: | Ashley AJ |
Decision: | Application dismissed |
Catchwords: | Interlocutory application |
Catchwords: | Practice and procedure - Evidence - Tendency and coincidence evidence - Application for ruling that evidence inadmissible as tendency and coincidence evidence - Whether application should be heard before hearing and determination of permanent stay application |
Legislation Cited: | |
Parties: | David Harold Eastman (Applicant) ACT Director of Public Prosecutions (Respondent) |
Representation: | Counsel Mr M Griffin QC with Ms L Line (Applicant) Mr M Thangaraj (Respondent) |
| Solicitors Legal Aid ACT ACT Director of Public Prosecutions | |
File Number(s): | SCC 111 of 1992 |
ASHLEY AJ:
Background
The Crown served notices of intention to adduce tendency and coincidence evidence on Eastman. The former, as amended, alleged that Eastman had tendencies to have two states of mind and to act in three ways, relying upon 47 incidents. The latter notice identified two matters of coincidence, and relied upon 11 incidents which were alleged to involve conduct by Eastman.
On 27 August 2015, I directed each party to file short written submissions identifying the issues said to be raised by the notices, and identifying which of those issues the party contended must or should be determined before the hearing of the stay application. I directed also that any issues which I concluded should be determined before the stay application would be dealt with in November this year.
The parties, in writing, progressively identified issues to do with the notices. Those issues included both the question whether the admissibility of the evidence needed to be decided before the stay application was heard, and the question whether the evidence would in fact be admissible at trial. When I say 'admissible' in this Ruling, except where stated otherwise I mean admissible as tendency or coincidence evidence, as the case might be; not 'admissible' on some other basis.
The position advanced by Eastman was that it was necessary for me to rule upon the admissibility of the evidence before the stay application was heard; and that I should rule it inadmissible. The position advanced by the Crown was that no such determination should be made; but that the evidence, in any event, would be admissible at trial.
I heard the parties orally on 26 November, treating Eastman as making oral application for a ruling that the evidence described was inadmissible for the purposes proposed by the notices. At the end of argument, I indicated, in substance, that for reasons to be published I would not rule upon the admissibility of the proposed evidence, but would instead assume, for the purposes of the stay application, that the evidence would be admissible at trial. As will be seen, that was an assumption which the Crown had invited me to act upon.
These are my reasons for reaching the conclusion which I then expressed, this entailing dismissal of Eastman's application.
Submissions for Eastman
Eastman's senior counsel submitted that the Crown proposed to rely upon a large amount of tendency and coincidence evidence. Much of it, he argued, would be inadmissible on such a footing. It was important for Eastman to know, so long after the first trial, what evidence would be admissible at trial. For the purposes of the stay application, it was relevant to know what the 'shape of the actual trial' would be.
Counsel agreed that his primary point of present relevance on the stay application would be, if the evidence was admissible, that Eastman would face a 'new case' at trial, this working a prejudice against him. Counsel agreed that, if I ruled the evidence inadmissible before the stay application was heard, it would weaken his client's case on that application, though strengthen his client's case if a trial was to be held.
I took counsel to an assumption which, in written submissions, the Crown had invited me to make when hearing the stay application. It was as follows:
The Accused asserts that the admission of the evidence will prejudice him at trial. For the purposes of the Stay Application, the Crown is content for the Court to assume that the tendency and coincidence evidence will be admitted.
I asked counsel how his client could be put in any more favourable position on the stay application than upon it being assumed that the evidence would be admissible at trial. Counsel accepted that the position could not be more favourable, but nonetheless submitted that I should not deal with the stay application on a 'artificial' basis. He raised the prospect that I might conclude, assuming that the evidence was admissible, that the Crown case was the stronger, and that this told in favour of a new trial. But then the trial judge might rule the evidence inadmissible and so 're-enliven the stay application that was unsuccessfully advanced.'
Submissions for the Crown
Senior Counsel for the Crown submitted that the assumption to which I have been referring was a concession which permitted Eastman to have his cake and eat it too. He could rely upon the alleged prejudice resulting from the 'new case' on the stay application, but could challenge the admissibility of the evidence if there was to be a new trial.
Counsel accepted that it would be open to Eastman to argue on the stay application that the Crown's proposed reliance upon tendency and coincidence evidence was a 'patch up job' and so told against a re-trial, although he briefly adverted to authorities which, he submitted, would tell against acceptance of any argument raised by Eastman in that connection.
Counsel submitted also that earlier on, when the matter was before the Chief Justice and later Whealy AJ, Eastman's position had been that any interlocutory applications should be disposed of subsequent to the hearing of the stay application. That hearing would help clarify issues, and that would make dealing with pre-trial issues and the conduct of the trial (assuming that it was to proceed) more efficient.
Counsel submitted that the case was one in which the complexity of factual material meant that evidence might be admitted on multiple bases. Matters of evidentiary admissibility, in certain circumstances, were likely to be re-agitated during the trial. It would be, counsel submitted, unfair and inappropriate to have a prima facie binding ruling on a trial judge made outside the context of the trial.
Counsel understandably agreed that, if I came to the conclusion that one or both of the notices as formulated was defective, it would not preclude the Crown from re-formulating a tendency or coincidence argument and delivering new notices.
Finally, counsel pointed out that it had been submitted in writing for Eastman that the Crown had made a strategic decision at the first trial not to rely on tendency and coincidence evidence; and that it was argued that the Crown should be prevented from adducing evidence for that purpose which had been, available but had not been so deployed. Whilst counsel did not accept that there had been no reliance on tendency and coincidence reasoning at the first trial - despite no notices having been served - he pointed out that the author of the assumed strategic decision[1] is to be called on the stay application; and so could be cross-examined about the matter. This underlined, counsel submitted, why the arguments which Eastman now sought to advance were capable of being clarified on the hearing of the stay application itself, as distinct from being the subject of speculation before that application was heard.
Resolution
[1] Senior counsel at the first trial.
It is not in debate that I am empowered to decide the substantive issue. The question is rather whether it necessary, or at least desirable, for me to do so. My answer to that question is 'no'. The assumption upon which the Crown invited me to act on the hearing of the stay application provides good reason, both independently and in conjunction with other matters, why I should not determine the admissibility of the evidence the subject of the tendency and coincidence notices before the stay application is heard.
It was correctly conceded by senior counsel for Eastman that the assumption would permit him to agitate the argument that - (a) there was to be a large body of evidence called on a new trial which had not been called at the first trial; (b) so far as any of it had been called, it had not been deployed for tendency or coincidence reasoning; (c) the Crown was undertaking a 'patch up job', prejudicial to Eastman, a matter telling in favour of a stay. At the same time, the assumption would permit Eastman to argue against the admissibility of the evidence in the event that the stay application failed. I see no unfairness to Eastman, as the Crown put it, in him having his cake and eating it too. In that last connection, if his stay application was to fail and the evidence was later held inadmissible for tendency/ coincidence purposes, Eastman would not be without potential remedy - as to which, see the submission noted in the last sentence of [11] above.
I am also of the opinion that it would be at least very difficult, and would probably lack utility, were I to attempt to resolve all issues to do with the admissibility of the evidence at this early stage. I do not say that it would be impossible to consider whether one or both notices was defective in form. But such a determination would not resolve issues of admissibility. Moreover, I think that counsel for the Crown was correct in submitting that it is very difficult to say, divorced from the trial context, how much of the evidence the subject of the notices might turn out to be admissible on some basis or bases regardless that tendency and coincidence reasoning was not available. I consider that there was substance to his argument that the 'shape of the actual trial would be difficult to clearly determine at this stage.
Finally, I consider that there was something to the submission for the Crown noted at [16] above.
Order
The formal order I will make is that the application is dismissed.
| I certify that the preceding 21 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Ashley AJ. Associate: C. Brain Date: 9 December 2015 |
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