R v Eastman (No 6)
[2015] ACTSC 377
•9 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 6) |
Citation: | [2015] ACTSC 377 |
Hearing Date(s): | 26 November 2015 |
Date of Orders: | 9 December 2015 |
Date of Publication of Reasons: | 9 December 2015 |
Before: | Ashley AJ |
Decision: | Application dismissed, save that certain challenges to the admissibility of evidence under s 65 of the Evidence Act 2011 (ACT) will be heard and determined in the course of the stay application; and save that consideration whether and, if so, when, a challenge to certain continuity evidence will be heard and determined, is reserved. |
Category: | Interlocutory application |
Catchwords: | Practice and procedure - Evidence - Seven categories of evidence - Whether Court should consider application that evidence be ruled inadmissible before hearing and determining stay application - application granted in part, otherwise dismissed. |
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:
Matters of history
On 27 August 2015, after hearing extended submissions, I gave comprehensive directions for dealing with a number of interlocutory matters, determination of which was to lead into and culminate in the hearing of Eastman's long-foreshadowed permanent stay application. Definite dates for dealing with those interlocutory matters, and for the hearing of the stay application, were provided to the parties very shortly thereafter. The dates were fixed so as to accommodate, so far as possible, the availability of counsel.
The interlocutory matters which I resolved to determine were -
(1)many challenges to claims of public interest immunity over documents produced by Australian Federal Police (' AFP');
(2)challenges by Eastman to tendency and coincidence notices served upon him by the Crown (subject to argument by the Crown that I should not deal with substantive challenge to the admissibility of the evidence);
(3)a dispute whether Eastman had waived legal professional privilege over the file of solicitors who had previously acted for him; and
(4)a dispute whether certain statements made to AFP by a barrister who had formerly acted for Eastman were subject to legal professional privilege.
Those matters were fixed for hearing over a period of four days in the second half of November 2015.
The stay application itself was listed for hearing over a period not exceeding two weeks, commencing on 8 February 2016.
Subsequent to my fixing dates for hearing those various matters, first Eastman, and then the Director, initiated applications seeking orders that they be provided with copies of the confidential section of the Report of the Board of Inquiry, and what were described as associated documents. Those applications were commenced with my imprimatur, and were fixed for hearing on 19 November 2015. There was an apparent connection between them and the disputed public interest immunity claims which were fixed for hearing that day. I mention this development simply to complete the picture of what I agreed to hear and determine before the stay application was heard, this fixing the factual basis upon which that application would be determined.
On 27 August 2015, I had declined to deal with one matter before hearing the stay application. It was a foreshadowed application by Eastman for a ruling that evidence of his 'nocturnal utterances', upon which the Crown relied as confessions of his guilt, was inadmissible. Those utterances, the precise language of which was in substantial debate at the first trial, were recorded by a listening device or devices installed at Eastman's home. I was of the view, on 27 August 2015, that whether that evidence was admissible was a matter which should be dealt with at trial. . But I observed that it would be open to Eastman, on the stay application, to submit that - (a) the strength of the Crown case would be diminished if the evidence was held inadmissible, (b) it was a realistic possibility that it would be so ruled, and (c) such a possibility might be brought to account on the stay application.
New matters raised
By letter dated 19 October 2015, Eastman's solicitor gave notice that I would be asked to (a) reconsider what had been, in effect, an interlocutory ruling about that matter, and (b) deal with the challenge to the admissibility of the particular evidence. Through the Registrar, I indicated that I would hear this application for reconsideration, if time was available, -in the period which I had set aside for hearing the interlocutory matters which I have earlier mentioned.
There was some reference in the letter of 19 October to there being other issues to do with admissibility which would need to be resolved.
The next development was that on 19 November 2015, there being time available for the matter to be briefly agitated, senior counsel for Eastman stated that he would now be asking me to deal with the admissibility of four pieces of evidence. He submitted that I should resolve the admissibility of that evidence before deciding the stay application. He submitted that if the various pieces of evidence were ruled inadmissible it would demonstrate that the Crown's circumstantial case against Eastman was weaker than either the Crown ('an overwhelming case') or the Board and Full Court ('a strong circumstantial case') had assessed it. This, counsel submitted, would be a relevant circumstance on the stay application.
I asked counsel whether the resolution of the four issues would entail evidence being called. He answered that it would do so in some instances. He stated that resolution of the issues would take one to two weeks. He then clarified this by saying that it would involve one to two weeks of evidence. He proposed that I should hear the stay application in February as scheduled, but make no decision about it until I had heard the arguments about admissibility in, say, April 2016. Why it should be April was not revealed.
Counsel then said that he would provide a 'short document' about these issues· to the Court and the Crown before the scheduled interlocutory hearings on 25 and 26 November; and he proposed that the matter be mentioned again when convenient on one or other of those days.
Expansion of new matters
A document was produced. Dated 25 November, it identified no less than seven matters relating to the admissibility of evidence which were said to require my attention before the hearing of the stay application. Thus -
(1) Evidence as to Eastman's 'nocturnal utterances'.
(2) Visual and voice identification evidence to be given by Dennis Reid.
(3) Evidence of alleged lies/false denials told in consciousness of guilt.
(4) Evidence to be adduced in reliance upon ss 65 and 67 of the Evidence Act 2011 (ACT) ('the s 65 evidence').
(5) Evidence of alleged sightings of a vehicle corresponding with Eastman's vehicle near Mr Klarenbeek's home on 31 December 1988.
(6) Evidence of alleged sightings of Eastman in the vicinity of the deceased's home on 7 - 8 January 1989.
(7) (Want of) continuity evidence relating to cartridges supplied by Mr Klarenbeek to the police.
Resolution
On 26 November, I heard competing submissions with respect to Eastman's oral application that I deal with the seven admissibility issues. The submissions for Eastman illuminated, in each instance, the basis or bases upon which the admissibility of the particular evidence was challenged.
I reached, and expressed, provisional conclusions that-
(1) I should hear argument as to the admissibility of s 65 evidence in the course of the stay application, so far as I was persuaded that any such evidence would be of true significance to assessing the strength of the Crown case.
(2) I would refrain from deciding whether I should deal with the alleged want of continuity evidence before the hearing of the stay application until the Crown had determined its position about that matter, and had informed me of it.
(3) I should refuse to decide any of the other five evidentiary issues raised by Eastman before the hearing of the stay application.
For the reasons which follow, I remain of the conclusions which I expressed on 26 November.
Item (4)
The issue raised by item (4) is whether certain evidence which the Crown seeks to adduce falls within the scope of s 65. In submissions on 26 November, senior counsel for Eastman stated that there were about five deceased witnesses whose evidence, it would be submitted, was incapable of falling within s 65, and whose evidence would be significant to assessment of the strength of the Crown case. The evidence highlighted by counsel was what he characterised .as 'hearsay on hearsay' evidence of the late Mrs Klarenbeek.[1]
[1]Discussed by the Full Court in Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178, 248 [232].
In my opinion, submissions with respect to the discrete issue thus identified could and should be dealt with in the course of the stay application itself. Senior counsel for the Crown did not seek to dissuade me from that view. In the event, I will hear pertinent argument in the fortnight which is to commence on 8 February 2016.
Item (7)
According to submissions advanced for Eastman on 26 November, analysis of the Crown's proofs shows a problem with establishing continuity of cartridges which were provided by Mr Klarenbeek to the police. Those cartridges are said to correspond with ejected cartridges found at the murder scene, this enabling identification of the 'Klarenbeek rifle' as the weapon used in the killing.
The Crown was only informed about this asserted problem very shortly before the hearing on 26 November, and had not resolved whether there was a problem, and if so, whether and how it could be resolved, when the hearing took place. I asked the Crown to provide me with a short note as to its position - for instance, whether it would be necessary to add a witness - when there had been adequate time to consider the matter. I made it clear that I could not decide what I should do about the issue thus raised until I was apprised of the Crown's position.
I still lack information which would enable me to resolve what I should do about the matter. I have decided to publish this ruling, leaving its disposition open for the moment.
Item 1
There was more than one thread to Eastman's argument with respect to the 'nocturnal utterances'.
A principal submission went this way: Eastman was subject to persistent and unlawful harassment by the police. It was designed to isolate him. It was causative of him making false admissions in his 'nocturnal utterances'.[2]
[2]Although, at another point in the argument, it was submitted that what Eastman was recorded as saying is indecipherable.
In answer to my questions, counsel stated that if I was to hear the admissibility challenge, no evidence would be adduced as to the alleged connection between the harassment and the making of the admissions. It would be a matter of inference.
Before Martin AJ, according to Eastman's counsel, a Dr Milton gave evidence that there was no causal connection; whilst a Dr Westmore (whose opinions were largely rejected by his Honour) stated that there was a possible connection. Martin AJ concluded that there was no such connection. But, counsel informed me, that conclusion was not accepted.
The conclusion reached by Martin AJ would not bind me. But it illustrates at least that it could not be said that the factual issue must be resolved one way. The invitation to inferential reasoning, I add, seemed to me to be an invitation to speculate. In all, I think it quite clear that any factual debate is archetypally one for a jury's determination.
Eastman's counsel foreshadowed an argument that warrants which authorised the installation of the listening devices had been granted without judges being fully aware of the campaign of harassment conducted by the police against Eastman. Had the judges been so informed, he submitted, the warrants may well not have been granted. That submission invited speculation, which is something in which I should not indulge.
Item 2
Dennis Reid gave evidence at the first trial which purported to identify Eastman visually and by voice as the man who had attempted to sell a Ruger 10/22 rifle to the witness not long before the murder.
The witness made tentative identification of Eastman by viewing photoboards on two occasions. He finally identified Eastman after having been put into face to face contact with him, and having heard him speak, when at a shopping centre.
Eastman's counsel submitted that I should entertain an application to hold that the proposed evidence of the witness should be excluded on the grounds that the identification procedure was improper, unfairly conducted, and done in a way that was very prejudicial to Eastman.
According to Eastman's counsel, no application to exclude Reid's evidence was made at the first trial.
I am not persuaded that it is either necessary or desirable to resolve this question in order to give adequate consideration to Eastman's stay application. In my opinion, it would be unsatisfactory to resolve the issue at a distance from the trial context.
This does not mean, however, that Eastman will be precluded on the stay application from arguing that Reid's evidence is likely to be excluded from any trial that is had, with whatever consequences that might have for the strength of the Crown case. I note, in passing, that the Crown identified Reid's evidence as part of what was said, at the Full Court hearing, to be a very powerful case against Eastman.[3]
Item 3
[3] Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178, 241-3 [216).
It was submitted for Eastman that the identified lies and false denials did not 'meet the necessary and requisite standard to be used as consciousness of guilt'. Counsel submitted, as I understand it, that it would not be open to a jury to conclude that the asserted lies and false denials were in fact lies and false denials; or to conclude to the requisite standard that they were lies told in consciousness of guilt of murder. Having examined the alleged lies and false denials upon which the Crown relies, I think it is quite clear that a jury could reach conclusions adverse to Eastman. Whether a jury would so conclude is a matter for a jury, not for me. Put another way, it could not be said that a jury would be precluded from so concluding, a situation in which my intervention would have been justified.
Item 5
The Crown proposes to call two witnesses, the gist of whose evidence will be that each of them saw a vehicle of the kind then owned and driven by Eastman in the vicinity of Mr Klarenbeek' s house at a relevant time.
Eastman's counsel submitted that the evidence of the witnesses was vague and unreliable, and more prejudicial than probative. As I understand it, he called s 135 or s 137 of the Evidence Act in aid of this submission.
I reject counsel's submission. It might be that the evidence of the two witnesses would not be thought by a jury to tell strongly in favour of the circumstantial case against Eastman; but there is nothing unfairly prejudicial in the evidence being adduced. No reason was disclosed why I should enter upon further investigation of this evidence. I cannot see a basis upon which I could rule it inadmissible.
Item 6
The Crown proposes to call two witnesses from whose evidence a jury will be asked to conclude that Eastman was loitering in the vicinity of the deceased's home in the period 7-8 January 1989.
Eastman's counsel took me to various details of the proposed _evidence with a view of demonstrating that the evidence would lack probative force, and that it was inconsistent with other evidence which the Crown intended to adduce. Essentially, as in the case of the evidence the subject of item 5, he sought to argue that it should be excluded on a discretionary basis.
It seems to me very clear that the question whether the evidence of the witnesses should be accepted, and the question where its acceptance or rejection would lead in the Crown's circumstantial case, are archetypally matters for consideration by a jury. There is nothing unfairly prejudicial about a jury being invited to accept the evidence of those witnesses. As with the proposed evidence the subject of item 5, this is an instance of the Crown intending to call witnesses who, on one view of things, have something relevant to say concerning the crime, although it cannot be said that their evidence would be determinative, and although it cannot be said that their evidence would sit comfortably with other evidence which the Crown proposes to adduce. Such a situation is commonplace. There is no basis for my further investigating the matter.
General observations
What I have said is enough to dispose of the application. But even if I had concluded that there had been a possible basis for my considering the issues raised (that is, other than with respect to item 4 and, possibly item 7), I would have been loath to do so.
Ordinarily, an application to determine the admissibility of evidence before trial is entertained because its resolution may assist in the more effective disposition of a trial. Here, if Eastman's stay application succeeds, there will be no trial. In effect, by analogy, Eastman's counsel submitted that resolution of questions of admissibility respecting the seven issues could bear upon one thread of his argument - that is, the strength of the Crown's circumstantial case - on the stay application. Conceptually, that may be accepted, but it does not mean that a possible advantage to Eastman on the hearing of the stay application is the only pertinent consideration. The following matters are in point.
First, there must be certainty as to the factual basis upon which the stay application is to be considered. It is not acceptable that it be simply a moving feast, variable according to the ingenuity of Eastman's counsel and instructing solicitors. After the extended directions hearing on 27 August 2015, a hearing which took place 12 months after the date upon which the Full Court quashed Eastman's conviction and ordered a retrial the factual basis upon which the application would proceed - so far as it concerned the strength of the Crown case - was set to be resolved by the resolution of some or all of the issues to do with tendency and coincidence evidence, and resolution of the issues to do with legal professional privilege. In my view, that ought to have been an end to the interlocutory disputation before the stay application was heard.
Second, Eastman is not disentitled from arguing on the stay application that -at a trial some or all of the evidence which I have discussed wilt or may be, ruled inadmissible, and (b) the realistic prospect that there may be such a ruling is a matter upon which he can rely in support of his stay application.[4]
[4] Whether such an argument might be difficult to sustain is another matter.
Third, whilst it is important that Eastman have a fair opportunity to advance argument in support of his stay application, this does not mean that the hearing of his application can be endlessly delayed. Fairness cuts both ways. The Crown must have a fair opportunity of dealing with the stay application, and going to trial if the application fails. It should be able to rely upon a case which is certain at a point in time. That is what was sought to be achieved by directions given on 27 August 2015. Further, the Crown should not be put in the position that, by reason of greater and greater elapse of time, Eastman is able to rely the more upon delay as a reason why then should be a permanent stay.
Fourth, the Court itself does not have endless time to devote to Eastman's litigation. That is so notwithstanding that it has now extended over a period of some 25 years, which might be thought to give the lie to the proposition just enunciated.
Finally, in the event that his stay application fails, Eastman will not be disentitled from arguing the admissibility issues which I have been discussing before the trial judge; and the resolution of those issues, if the trial judge determines to resolve them (or any of them) before trial will carry with it whatever consequences logically flow.
Orders
I will order that the application be dismissed, save that - (a) I wilt in my discretion, hear and determine challenges to the admissibility of evidence under s 65 of the Evidence Act 2011 (ACT) in the course of the stay application, the hearing of which is fixed to commence on 8 February 2016; and (b) I reserve consideration whether, and if so when, I will hear and determine a challenge to 'continuity' evidence with respect to cartridges supplied by Mr Klarenbeek to the police.
| I certify that the preceding 47 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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