[2018] ACTSC 12

1. The evidence of previous representations made by Mr Dennis Barbara at the first trial on 18 July 1995 is admissible pursuant to s 65(3) of the Evidence Act 2011 (ACT).
2. The evidence of Dr Dennis Roantree as to the words 'The police should be taught a lesson' is admissible.
3. The evidence of Dr Roantree as to the words 'I should shoot the bastard' is inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT).

CRIMINAL LAW - EVIDENCE - Whether evidence of alleged threats made by accused admissible -- evidence given at earlier trial admissible pursuant to s 65(3) Evidence Act 2011 (ACT) - evidence excluded where danger of prejudice to accused outweighs probative value pursuant to s 137 of Evidence Act 2011 (ACT) -- factors relevant to balancing danger of prejudice and probative value in s 137 of Evidence Act 2011 (ACT)

Evidence Act 2011 (ACT) ss 65(3), 67, 137 and 165

Evidence Act 1995 (Cth) s 137

Evidence Act 2008 (Vic) ss 65(2)(b), 65(3) and 137

Aytugrul v The Queen [2012] HCA 15; 247 CLR 170

Bray (A Pseudonym) v R [2014] VSCA 276; 46 VR 623

Dupas v The Queen [2012] VSCA 328; 40 VR 182

IMM v The Queen [2016] HCA 14; 257 CLR 300

Papakosmas v The Queen [1999] HCA 37; 196 CLR 297

Peterson (A Pseudonym) v R [2014] VSCA 111

R v Debresay (Ruling No 1) [2016] VSC 487

R v SJRC [2007] NSWCCA 142

R v Yates [2002] NSWCCA 520

The Queen v Duke (1979) 22 SASR 46; 1 A Crim R 39

Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown)

Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused)

1. The prosecution seeks to rely on the evidence of statements, said to be threats, allegedly made by the accused relating to Mr Winchester in the presence of Mr Dennis Barbara, then a solicitor acting for the accused and Dr Dennis Roantree, then a medical practitioner. Both gave evidence at the first trial of the accused. Mr Barbara gave evidence that the accused had told him that 'I'll kill Winchester and I'll get the Ombudsman too' (the 'Barbara statement'). Dr Roantree gave evidence that the accused had said to him first 'The police should be taught a lesson' and then 'I should shoot the bastard' (the 'Roantree statements'). The prosecution seeks to rely at the retrial, as it did at the first trial, upon the evidence of Mr Barbara and Dr Roantree as supporting both motive and tendency.
2. Mr Barbara is deceased and therefore unavailable to be called as a witness at the retrial. The prosecution has filed a notice pursuant to s 67 of the Evidence Act 2011 (ACT) ('the Act') concerning his evidence. That notice demonstrates that the prosecution relies upon evidence given by Mr Barbara at both the inquest and the first trial. The prosecution intends to call Dr Roantree as a witness at the retrial.
3. The defence contests the admissibility of the evidence relating to both the Barbara and Roantree statements. In relation to the Barbara statement no issue is taken by the defence with respect to the statement being hearsay, it clearly being admissible under s 65(3) of the Act. However, the defence submits that the evidence of that statement should be excluded pursuant to s 137 of the Act. It is submitted that the statement allegedly made in the presence of Mr Barbara has little probative value when regard is had to all of the circumstances surrounding its alleged making. Furthermore, it is submitted that its probative value is outweighed by the danger of unfair prejudice.
4. In a Record of Conversation with Commander Ninness on 13 January 1989 Dr Roantree referred to his consultation with the accused on 6 January 1989 and said that:

I think as he was leaving the office in the waiting room. [Eastman said] something to the effect that the police should be taught a lesson.

....

.... And I'm not sure, I can't swear to it, but I think he said 'I should shoot the bastard.' But I I can't be sure.

.... It was just a passing quip as he went out the door, if he said it at all ....

1. The Prosecution relies on both the statement about the police being 'taught a lesson' and the statement 'I should shoot the bastard' as constituting threats made by the accused towards police and Mr Winchester in particular.
2. It is submitted on behalf of the accused that upon examination of the state of Dr Roantree's evidence as to whether the statements alleged to have been made were in fact made, the evidence should be excluded under s 137 of the Act on the basis that the danger of unfair prejudice is high and that that danger outweighs the probative value of the evidence which, it is submitted, is limited in the circumstances.
3. In submitting that the evidence of Mr Barbara should not be admitted, the defence relies on a number of matters which arise from the evidence given previously by Mr Barbara at the coronial inquest and the first trial.

Evidence given previously by Mr Barbara as to the statement made in his presence

1. In summary the evidence given by Mr Barbara at the inquest on 15 September 1989 is as follows. In the latter part of 1988 he was consulted by the accused in relation to assault charges brought against the accused in respect of an altercation between him and a Mr Russo. To the best of his recollection Mr Barbara was first consulted by the accused as early as the last part of October 1988 and his last consultation with the accused 'could have been anywhere as late as late November or, at the latest, the first part of December' 1988.
2. Mr Barbara said that he could recall specifically two consultations, but there could have been another consultation. He said that in the course of one consultation the accused made a threat directed at Mr Winchester. Mr Barbara said 'I am 99% certain that the precise words used were "I'll kill Winchester and I'll get the Ombudsman too"'. He said that those words were said by the accused in the course of a short emotional tirade. In answer to a question asked by counsel assisting the Coroner as to whether he had any doubt in his mind that the accused had used the word 'kill', Mr Barbara answered 'no doubt at all'. In answer to a further question from counsel assisting the Coroner as to whether he was absolutely sure that the accused said he was going to kill Mr Winchester, Mr Barbara said 'I am absolutely sure that the word "kill" and the word "Winchester" was used'. Mr Barbara said he had no doubt about the fact that the accused went on to say that he would 'get the Ombudsman too'. Clearly if those words were used they can be seen to be evidence of the state of mind of the accused at the time, and are of probative value in terms of motive.
3. Mr Barbara gave evidence that for a period of time after the consultation he had 'maintained his silence' about that part of the conversation because of his concerns that it was the subject of legal professional privilege. Mr Barbara gave evidence that he had not spoken to police about the matter until some days before giving evidence at the committal. Under cross-examination by then counsel for the Australian Federal Police (AFP) Mr Barbara said that the date of the threat made by the accused was definitely sometime in November 1988, 'it could have been towards the end of November at the latest the first part in December'. He said that he had no diary notes or records of the conversation, although he had undertaken a search of his office to try and find the file notes.
4. Under cross-examination by counsel then appearing for Mrs Winchester and her family Mr Barbara said that he could not recollect the accused having mentioned the name Winchester before the threat and he did not do so afterwards. Mr Barbara said that at the time he had not heard the name Winchester. Under crossexamination from counsel for the accused Mr Barbara said that he had no records of the conversation. He said that he first felt that the conversation may have been of some importance 'approximately three weeks after the death of Mr Winchester'. It was put to him by counsel for the accused that the first occasion upon which Mr Barbara saw the accused was at 3:30 pm on 24 October 1988. He agreed that that might well be correct. Mr Barbara was asked by counsel for the accused whether he may have confused the name of Senior Constable Walker with Winchester. He said in response 'not in relation to the threat'. Mr Barbara said he thought it was approximately three weeks after the death of Mr Winchester that he sought advice (from his law firm partners) in relation to the threat. He agreed that it was possibly two months after the threat was made before he attached any particular importance to it. He said:

.... no I recall - when the Assistant Commissioner was killed for some unknown reason I just could not forget that name. There was something that just kept bugging me and a couple of weeks later I made the connection and it was then that I thought back to when those words were used.

I was not feeling comfortable with myself because I had never heard of Winchester before he was killed and then all of a sudden he is killed and I just could not, for some unknown reason I just - I could not find a reason why I kept on turning his name over in my mind.

1. In response to a question from counsel for the accused as to how it was that he could recall the words of the threat when he could not recall other words that were used in the conversation he said:

I recall, yes, I recall those words simply because of what happened and also that those words were said when he lost his temper in my office.

1. The following exchange took place between Mr Donald who was acting for the accused and Mr Barbara:

So you kept on turning his name over in your mind for a couple of weeks?---Oh yes.

And finally after a couple of weeks this conversation came back to you?---When I made the connection of where - of Winchester with Eastman, yes.

And this was a recollection of a conversation again which you placed no importance on at the time?---No. I mean I placed sufficient importance at that time to seek legal advice from my partners.

No, I am talking about the time it was said?---At the time it was said, no, no importance at all.

You see, what I am putting to you is you had forgotten about these remarks for some possibly two and a half months?---Yes.

And it was only after a couple of weeks of mental gymnastics that you finally remembered or thought you remembered where you had heard the name Winchester?---Correct.

Is it not possible that during this passage of time and during the or given the efforts that you made to recall the connection that in fact you may have placed the conversation or some of the words out of context?---No.

1. At the first trial, Mr Barbara was called to give evidence on 18 July 1995. Objection was taken by then counsel for the accused to Mr Barbara giving evidence as to his discussions with the accused on the basis that those discussions were the subject of legal professional privilege. Accordingly a voir dire was conducted in relation to that matter. In the course of the voir dire then counsel for the accused crossexamined Mr Barbara as to the steps that he had taken subsequent to the threat made by the accused. He said that the first persons he had spoken to were his partners and eight months after that he spoke to a police officer, Commander Ninness. Counsel for the accused put the following questions to Mr Barbara who responded as follows (see trial transcript at 2705):

All right, and would you agree with this assessment, and I'll use a phrase, I think, that you've used yourself before, that - a phrase that you used before in describing how you came about to remember the incident involved some mental gymnastics?---Yes, at the - straight after the murder I just felt uncomfortable with the name - - -

Yes? ---- - - and I couldn't recall specifically why I was thinking along those lines and it was only - I think it was about two or three weeks later that the penny finally dropped and I made the connection between Winchester and the consultation I had with Mr Eastman in October/November or [sic] 1988, and it was that time that I was concerned enough to seek advice from my partners to see whether I should come forward at that stage.

1. At the conclusion of the voir dire then counsel for the accused submitted that the communication in question was subject to legal professional privilege, which submission was rejected by the learned trial judge. It is beyond argument that the trial judge's ruling in this regard was correct and no submission to the contrary was made by defence counsel before me. At the first trial counsel for the accused also submitted that even if the evidence were admissible it should be rejected by the application of s 137 of the Evidence Act 1995 (Cth). This application was also rejected by the trial judge. Upon his Honour handing down the ruling in the matter (see 2721-2722 of the trial transcript) the accused announced that he was withdrawing instructions from his counsel in the trial. Counsel for the accused then withdrew and Mr Barbara gave very brief evidence that, when the accused had consulted him in late November or early December 1988 in relation to the charge of alleged assault by the accused against Mr Russo, and in the course of the consultation, the accused said 'I'll kill Winchester and I'll get the Ombudsman too'. The accused declined to ask Mr Barbara any questions in cross-examination.

Defence submissions in relation to the evidence of Mr Barbara

1. Mr Georgiou on behalf of the accused submits that the statement said to have been made by the accused in the presence of Mr Barbara now cannot be tested by crossexamination at the retrial, nor can the demeanour of Mr Barbara be evaluated by the jury. Mr Georgiou submits that for three reasons unfair prejudice arises by reason of the fact that Mr Barbara is no longer available to give evidence. First he argues that the assertion made by Mr Barbara that he was ninety-nine percent certain that the words used by the accused were 'I'll kill Winchester and I'll get the Ombudsman too' is incapable of being tested. Secondly he argues that the fact that Mr Barbara reached such certainty after 'mental gymnastics' is incapable of being tested by cross-examination, and thirdly that the jury will be denied the opportunity of observing the demeanour of Mr Barbara, particularly in relation to the certainty with which he might express himself, and to the process of the 'mental gymnastics' that he agreed he had engaged in. In this regard Mr Georgiou submits that although instructions could be given to the jury under s 165 of the Act, no direction can cure the inability of a jury to make a proper assessment of the evidence of Mr Barbara.
2. Mr Georgiou submits that the probative value of Mr Barbara's evidence is limited by reason of the fact that Mr Barbara has given evidence that he did not make any notes of the alleged threat to kill Mr Winchester and that he had never heard the name Winchester at the time that the accused is said to have made the threat. He submits that by his own admission Mr Barbara engaged in 'mental gymnastics' for a few weeks after the murder to recall who it was who spoke to him about Mr Winchester and when that conversation occurred. Further, it is submitted that as the meeting between the accused and Mr Winchester took place on 16 December 1988 and all of the time periods nominated by Mr Barbara in which the threat occurred were before that date, the accused had no reason to conclude that Mr Winchester would not assist him regarding the Russo assault, and had no reason to hold any animus towards Mr Winchester. Furthermore, it is argued that if the threat was made 'doubt arises as to its seriousness' as Mr Barbara stated that the accused lost his temper for two or three seconds only before returning to normal. Finally it is submitted that the evidence of Mr Barbara as to the threat should be excluded under s 137 of the Act as the probative value of such evidence, particularly given the manner in which it was recalled by Mr Barbara, is low and the danger of unfair prejudice to Mr Eastman is high.

Prosecution submissions in relation to the evidence of Mr Barbara

1. The prosecution submits that the evidence of the statement directed at Mr Winchester made by the accused in the presence of Mr Barbara is clearly probative. It is submitted that the probative value of a threat to kill, made within months of a murder, is obvious, and more so in circumstances where other evidence points to the involvement of the maker of the threat in the killing. It is submitted that the threat was about Mr Winchester at a time that was proximate to his murder.
2. As to the defence argument that prejudice arises by reason of the evidence, the prosecution relies upon R v Yates [2002] NSWCCA 520, where Wood CJ, Hulme J and Buddin JJ said at [252]:

Prejudice argues for exclusion only if there is a real risk of danger of it being unfair .... This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight.

1. Likewise in Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [75] Heydon J considered that in deciding whether there is a danger that evidence may lead to a jury adopting an illegitimate form of reasoning, or giving the evidence undue weight, it is reasonable to have regard to whether appropriate directions may ameliorate the danger.
2. In relation to the evidence of Mr Barbara the prosecution relies upon s 65(3) as Mr Barbara gave evidence both at the coronial inquest where he was crossexamined and at the first trial where the accused had a reasonable opportunity to cross-examine him. As to the argument advanced on behalf of the accused that the fact that Mr Barbara is deceased and unable to be crossexamined is a basis for excluding his evidence, the prosecution points out that it must always be the case that evidence admitted pursuant to s 65 of the Act is unable to be tested and that it cannot be the case that evidence admissible under that section should be excluded on the basis that the jury may for that reason give it undue weight. In any event, the prosecution submits the evidence of Mr Barbara is not untested. It was tested at the inquest by Mr Donald who represented the accused at the time and further by Mr Terracini, on a voir dire, who cross-examined Mr Barbara about a number of matters, including his memory and the timing of the threat.
3. In relation to the argument advanced by the defence that the evidence of Mr Barbara should be excluded on the basis that on the voir dire at the first trial Mr Barbara stated that he did not make any notes of the threat made by the accused, the prosecution submits that it is apparent that Mr Barbara had a clear recollection of the threat. The prosecution relies upon an exchange that took place at the inquest between Mr Donald on behalf of the accused and Mr Barbara:

Is it not possible that during this passage of time and during the or given the efforts that you made to recall the connection that in fact you may have placed the conversation or some of the words out of context?---No.

How can you say that when you had not written them down and had not thought of them for two and a half months, possibly two and a half months?---Simply because Mr Eastman was not your normal client, that I suppose I was on my guard from the first day I saw him and the problems that he had caused me throughout the terms of the retainer it was not easy to forget that particular client and it was only - I mean from the time that I last saw him to the date of the death.

1. As to the argument advanced on behalf of the accused that the probative value of Mr Barbara's evidence is limited, given that he gave evidence that he engaged in 'mental gymnastics' for a 'few weeks after the murder' as to who it was that had spoken to him about Mr Winchester, the prosecution submits that it is clear that at the inquest Mr Barbara was emphatic as to what was said to him. The inquest transcript (at 1034) records the following evidence:

And do you recall what it was that he said?---I am 99 per cent certain that the precise words used were, "I'll kill Winchester and I'll get the Ombudsman too."

And when he said, "I will kill Winchester and I'll get the Ombudsman too", how did he appear? What was his mood?---Well, the words were said in the course of a short emotional tirade. It was a short moment of passion. He seemed frustrated.

You have no doubt in your mind that he used the word "kill"?---No doubt at all.

And that word was used in relation to Mr Winchester? ---That is correct.

HIS WORSHIP: So when you say no doubt, you are 99 per cent sure of the actual words you have given, but you are absolutely sure about the last factors? ---Yes, yes.

MR DEE: You are absolutely sure that he said he was going to kill Mr Winchester?---I am absolutely sure that the word "kill" was used and the word "Winchester" was used.

And then he went on to say and then he would get the Ombudsman too?---Yes.

You have no doubt about that either?---No, no doubt about that.

1. Finally the prosecution refers to the fact that the matter was dealt with by the judge in the first trial after Mr Terracini made an application for the evidence to be rejected pursuant to s 137 of the Evidence Act 1995 (Cth). His Honour conducted a voir dire and then determined that the probative value of the assertion was high and that no real prejudice was caused to the accused. The prosecution submits that the only thing that is now different is that Mr Barbara, who was ill at the time of the trial, has since passed away. The prosecution submits that the decision of the trial judge was correct, and there is no reason why such decision should be departed from now. I agree. It is submitted that the evidence is not inflammatory and there is nothing in the nature of the evidence that might overwhelm a jury nor is there a significant risk of it being misused on the basis that the jury will be given appropriate directions about the matter.

Conclusion as to the admissibility of the evidence of Mr Barbara

1. I have no doubt that the evidence of Mr Barbara has considerable probative value. As submitted by the prosecution, the probative value of a threat to kill made within months of a murder is obvious and the probative value is increased in circumstances where, as here, there is other evidence pointing to involvement of the maker of the threat in the killing. The jury would be entitled to conclude that the threat was made about Mr Winchester at a time that was proximate to his murder and is evidence of motive.
2. As stated above the principle thrust of the defence argument that the evidence of Mr Barbara should not be admitted is the fact that his evidence is no longer capable of being the subject of cross-examination. A similar argument was considered by the Victorian Court of Appeal in Bray (A Pseudonym) v The Queen [2014] VSCA 276; 46 VR 623 ('Bray'), which decision I should note was very properly brought to my attention by Mr Georgiou. In that case, which was a case where the accused was on trial on a charge of rape, the complainant had made a statement to police, and had given evidence and been cross-examined at a committal hearing. She had however died before the matter came on for trial. The prosecution, relying on ss 65(2)(b) and 65(3) of the Evidence Act 2008 (Vic), which sections are identical to those in the Act, applied to have the statement and the transcript of evidence of the complainant admitted into evidence. The trial judge granted the application and rejected the submissions made on behalf of the accused that the evidence should be excluded on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused within the meaning of s 137 of the Evidence Act 2008 (Vic) which section is likewise identical to the Act
3. Upon an application made by the accused to appeal the ruling of the trial judge, the Court of Appeal (Maxwell P, Weinberg and Santamaria JJA) in Bray refused leave. In the course of his judgment Santamaria JA (with whom the other members of the court agreed) stated as follows at [65] to [70]:

In my opinion, it was open to the trial judge to rule, as she did, both in relation to s 137 of the Act, and in relation to the common law fairness discretion.

In Dupas [2012] VSCA 328, 40 VR 182, 218 A Crim R 507] the Court considered the application of s 137. It held that the application of that section involves a series of steps: first, an assessment of the probative value of the evidence; second, an assessment of the danger of unfair prejudice to the defendant; and, third, a weighing of the probative value of the evidence with any danger of such prejudice. If the latter outweighs the former, the court must refuse to admit the evidence.

In assessing the probative value of the evidence, it is necessary to assume its truthfulness, although not its reliability.

In considering 'unfair prejudice', the issue is not that the evidence may lead to conviction; rather the issue is whether the evidence may be misused [Papakosmas v The Queen [1999] HCA 37, 196 CLR 297at 325 [91] per McHugh J]. The risk is that the jury may be distracted from its proper role and give particular evidence more weight than it deserves. [See also The Queen v Duke (1979) 22 SASR 46, 47-48 (King CJ).]

In the present case, the trial judge clearly assessed the probative value of the evidence. It cannot be contended that her conclusion in that regard was not reasonably open. The complainant's evidence was clear. Undoubtedly, there were inconsistencies, but there was nothing about it that made it implausible. In addition, there were other indications of its reliability. Within a few hours of the alleged rape, the complainant had told MH that she had been raped. There was also DNA evidence to support her claim that she had been penetrated. And, the applicant had himself admitted that he had had anal intercourse with the complainant.

Moreover, the committal evidence was given by the complainant before a Magistrate in the expectation that she would be cross-examined on her police statement. It is not as though she was unresponsive to the questions directed to her, or gave an account of the incident which was inherently improbable. It was open to the trial judge to consider such inconsistencies as there were in her evidence to be peripheral and not destructive of her credibility. The fact that it is proposed, in a criminal proceeding, to lead hearsay evidence in the form of a previous representation made in the course of giving evidence in another proceeding will commonly raise the danger of unfair prejudice within the meaning of s 137 of the Act. However, in engaging in the balancing exercise under that section, it must be remembered that s 65(3) is a provision specifically directed to criminal proceedings. It stipulates that one or other of two conditions must be satisfied for admissibility: either (a) the defendant in the criminal proceeding cross-examined the person who made the previous representation, or (b) the defendant had a reasonable opportunity to do so. In each case, the three step analysis contained in s 137 must be carried out. This means, first, an assessment of probative value, next an assessment of the danger of unfair prejudice, and lastly, the weighing process. The fact that a defendant chose not to avail himself or herself of the opportunity to cross-examine the maker of a representation cannot, by itself, mean that the evidence must be excluded. Such a principle would subvert the policy of the Act as manifested in the statutory exceptions to the hearsay rule.

1. Mr Barbara gave evidence at the coronial inquest and was cross-examined by the then solicitor for the accused. He gave evidence on a voir dire at the first trial and was cross-examined by then counsel for the accused on the voir dire, although it is fair to say that one of the issues under consideration at that time was whether the statement allegedly made by the accused was the subject of legal professional privilege. The trial judge ruled that it was not so privileged and furthermore that the probative value of the evidence outweighed any prejudice. Upon the trial judge making that determination the accused withdrew his instructions to his counsel. Mr Barbara then gave evidence. The accused was given every opportunity to crossexamine Mr Barbara but chose not to do so (see trial transcript 2725 - 2727).
2. I accept that had the retainer of counsel for the accused, Mr Terracini, not been withdrawn by the accused immediately after the voir dire, the crossexamination of Mr Barbara may have been more rigorous than perhaps it was at the inquest or upon the voir dire. However, the fact is that Mr Barbara's evidence was tested on both occasions. As observed by Santamaria JA in Bray the fact that an accused chooses not to cross-examine the maker of a representation does not by itself mean that the representation must be excluded. The fairness of the trial cannot be determined by the forensic choices made by the accused at the previous trial. In my view, the probative value of Mr Barbara's evidence is high. As stated by the Victorian Court of Appeal in Peterson (A Pseudonym) v R [2014] VSCA 111 at [51]:

When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury rationally could attach to the impugned evidence. In so doing the judge is not required to assume that its reliability will be accepted. Resolution of the capacity of the evidence rationally to affect the determination of a fact in issue requires the judge to make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it be contended that the quality - or the frailties - of the evidence would result in the jury attaching more weight to the evidence than it deserves, the trial judge is required to assess the extent of the risk. But the trial judge is not required to gauge the weight that the jury will or would give to the evidence. Instead, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight.

1. In relation to the argument advanced by counsel for the accused that the incapacity to cross-examine Mr Barbara raises the issue of unfair prejudice to a level whereby the evidence should be excluded, there can be no doubt that the authorities clearly establish (as does s 65(3) of the Act itself) that evidence that cannot be tested by crossexamination can nevertheless be led.
2. Whilst I accept that some unfairness may accrue to the accused by reason of the inability to test the evidence of Mr Barbara in the course of the trial, the true question is whether there is some aspect of the evidence which by reason of the incapacity to cross-examine is such that there is a risk that the jury may misuse it, or be distracted from its proper role, and give the evidence more weight than it deserves. In my view in relation to the evidence of Mr Barbara the balancing exercise in which I must engage pursuant to s 137 of the Act does not lead to a conclusion that the danger of unfair prejudice outweighs the probative value of the evidence to be led. Indeed, I am of the opinion that the probative value of the evidence substantially outweighs any danger of unfair prejudice to the accused arising out of the fact that the accused's counsel cannot cross-examine Mr Barbara.
3. Obviously, the admission of the evidence of Mr Barbara requires me to direct the jury pursuant to s 165 of the Act, that they must exercise caution in the use of that evidence for a number of reasons, including that the jury did not have the opportunity to have Mr Barbara relate the evidence first hand to them; they did not have the opportunity to observe his demeanour in giving that evidence, and importantly, that they did not have the advantage of seeing and hearing the evidence tested by cross-examination. The direction would require the jury to exercise particular caution concerning accepting the truth and accuracy of the evidence and would specify to the jury such reasons as there may be as to why they may regard the evidence as unreliable. I shall give such directions.
4. It is appropriate to observe that although neither the prosecution nor the defence made any submissions as to the appropriate manner of leading the evidence of Mr Barbara, I would intend that his evidence be read to the jury and not tendered to them in a written statement so as to ensure that the evidence does not assume undue prominence in the trial.
5. In all the circumstances, as stated above, I do not consider that the probative value of the evidence of the representations of Mr Barbara as to the statement made to him by the accused, is outweighed by unfair prejudice to the accused.
6. The amended notice filed pursuant to s 67(1) of the Act of intention to adduce evidence of previous representations of Mr Barbara states that the prosecution intends to present the evidence of Mr Barbara given previously at the first trial on 18 July 1995 excluding Transcript pages 2708.30 to 2724.40. I rule that that evidence is admissible.

Evidence of Dr Roantree as to the statements made in his presence

1. Dr Roantree gave evidence at the first trial on 28 June 1995. He said that he had been the accused's general practitioner for some years. He said that he had had a consultation with the accused on Friday, 6 January 1989. He said that some time after that consultation he made a note about some of the things that occurred during that consultation. He said that he made the note about a week after the consultation at a time when what had occurred was reasonably fresh in his memory. He said that at the time of giving evidence his 'present memory would be fairly vague as far as that consultation is concerned' and at that point he was given leave by the court to refer to the note to refresh his memory.
2. Dr Roantree said that at the consultation he had enquired of the accused as to whether he had heard anything further from the public service about his job reinstatement, for which the accused had been hoping. The accused answered that he had not, and that he would expect it to take a while but he was hoping something would come up in the near future. The accused told Dr Roantree that he was worried about a pending assault charge that had been brought against him and he said he had been to see the Police Commissioner with a political figure and that he had not received any help there at all. He said that in fact he had been thrown out, or virtually thrown out, of the office. That was the accused's interpretation of what had happened. The accused stated that he felt like getting up and pushing the Commissioner off his chair. Dr Roantree then said (at trial transcript 2049-2050):

Now, I was washing my hands at the time and I made the comment, "You can't do things like that. You can't push police commissioners off their chair." And when I returned to my desk I felt that there was very extreme anger towards that comment. He said that he wasn't listened to at all and he was furious. I then deflected any ongoing business there and turned to his current condition and we discussed his symptoms at the time. I examined him and I dealt with the medical side of things. And then I began to write some referrals and as I was writing referrals he - he felt - he said that he felt that he - his condition may be deteriorating. And I stated that from my observations over the last 10 years I felt that his condition was improving. Then he made the comment that the police should be taught a lesson. Every time something happens he feels - felt that he was suspected and every time he reports - reported anything he got the blame. I then talked to him about what I had written referrals for and finished the consultation and - and that was the end of the consultation.

1. Dr Roantree was then asked by the prosecutor whether the accused had said anything as he left. Dr Roantree said:

Well, I believe that he said, "I should shoot the bastard." [My italics]

1. Although Dr Roantree had recorded this statement, in the note made by him several days after first speaking to police, it was later crossed out by him. In the course of giving evidence at the first trial Dr Roantree was asked why he had crossed out from his note the statement 'I should shoot the bastard', he said:

I believe - my recollection of the events is that I had spoken to police before I wrote that note.

.... And I'd told them that I thought that I recalled that but I wasn't - I told them I wasn't prepared to swear to that and so I took it off my note as well.

1. When asked why he told police that he was not prepared to swear to it he said:

Well, I wasn't particularly happy about having to give - feeling obliged to give evidence about a patient and I didn't want the police to feel that my evidence was too important to them. I wanted them - all I wanted to do was suggest to them that perhaps they should look at this particular person but - but I didn't want to give evidence enough to - to make me the main witness.

1. Dr Roantree was then asked the following question and responded as follows:

The crucial thing however is whatever reasons you had for that, what is the state - what was your state of recollection as to the use of those words?---I believe now that - that had I not recalled that accurately I wouldn't have even mentioned it. [My italics]

1. The prosecution places considerable reliance upon the evidence given by Dr Roantree at trial and in particular upon his statement at that time 'that had I not recalled that accurately I wouldn't even have mentioned it'.
2. The defence however relies upon matters other than the evidence given at trial by Dr Roantree. Dr Roantree first spoke to police, Commander Ninness, on 13 January 1989, seven days after the consultation with the accused. The record of interview reveals that Mr Ninness commenced the interview as follows (at INQ.504.00219-223):

Doctor, you wish to talk about a patient that you've had dealings with in recent times.

1. Mr Ninness then asked Dr Roantree to relate his concerns to police. Dr Roantree said:

He's got a history of violence. Always provoked. The way it's told to me, he's always had the violence provoked. He's discharged from the Public Service 10 years ago, because he, apparently he was striking people that he didn't agree with.

1. Dr Roantree was then asked by Mr Ninness as to whether he thought there was any possibility the accused could be involved in the murder of Mr Winchester. Dr Roantree responded that he thought it was possible and then said (at INQ.504.00219):

When I last saw him on Friday, a week ago, the 6th of January, he consulted me about a straight forward matter but in passing he was telling me about an interview he'd had with a politician, he'd gone along to an interview with a high ranking Police Officer.

.... I think he believed that he was being harassed by the police. I think he believed that he was being harassed. Ahm, he'd had dealings, you know with other matters and I believe there was an altercation at Reid, in the car park with another member of the flats, maybe 12 months ago, and there was a fight ensued. Mr EASTMAN claims that he was assaulted. Later he tells me that he found that the assailant was a Police Officer. And he believes that, and he went to try and report this to the police, this assault, and felt that he was just palmed off because he was being, his complaints weren't being taken seriously. He was being accused of being the aggressor rather than the, than the victim.

1. Dr Roantree told police that he believed that the accused had been subsequently charged with a criminal offence and the case was supposed to come up at court the day before the interview was being undertaken, that is 12 January 1989. Dr Roantree said that he believed that the accused had had an interview with Mr Winchester, together with a politician who was an opposition member. Dr Roantree then repeated what he had been told by the accused as to that interview (at INQ.504.00223-224):

He related the fact that he had an interview and that he was brushed off and he said that he felt like pushing the Commissioner off his chair. At which time I really didn't take it seriously and just changed the subject and started talking about his current condition that he'd consulted me about. ....

.... He spoke about his general feelings during the interview, during the consultation. He said that he felt that his paranoia, even though recently he's been assessed as being fit to go back into the Public Service, following psychiatric ....

He felt that his paranoia was maybe becoming worse. At which time I sort of reassured him and said that as far as I was concerned I thought he was improving. ....

.... Which was my honest judgement at the time. He, later on during the consultation, it was a fairly long consultation about a number of different matters. But he came back onto the subject, I think as he was leaving the office, in the waiting room. Something to the effect that the police should be taught a lesson. ....

.... And_, I'm not sure, I can't swear to it, but I think he said 'I should shoot the bastard'. But I I, can't be sure_. [My italics]

1. Subsequently Dr Roantree was questioned by Mr Ninness as to whether Dr Roantree had inferred that the accused was referring to shooting Mr Winchester. Dr Roantree responded:

That's what I'm wondering whether that's what he meant.

1. Mr Ninness asked Dr Roantree whether the accused had said anything else about shooting, to which Dr Roantree replied:

No that was it. It was just a passing quip as he went out the door. If he said it at all, I'm almost certain he said it, but it was a quip as he went out the door ....[My italics]

1. The statement, if it was made, is clearly relevant to the state of mind of the accused at that time and is cogent as to the issue of motive. The question of Dr Roantree's opinion that the statement was a 'quip' would ordinarily be a matter for the jury to consider.
2. Subsequently Dr Roantree gave evidence at the inquest on 6 September 1989. It would appear that he objected to giving evidence as he was concerned about the nature of his ethical relationship with his patient, but the coroner dismissed his objection. Parts of the record of the interview Mr Ninness had with Dr Roantree on 13 January 1989 were read to Dr Roantree. He agreed that statements he had attributed to the accused in the interview were true and correct. Dr Roantree stated that he made notes at the time of his consultation with the accused on 6 January 1989, but 'only of clinical matters, not of any ordinary conversation'. He stated that the notes he made subsequently as to the conversations he had with the accused were made approximately ten days after the consultation and three days after he first spoke to Mr Ninness. He was asked specifically by counsel assisting the coroner why he had crossed the last line of that note out. He said he put a line through the statement 'because I was fairly certain that that is what was said, but I was not prepared to swear on it'.
3. On 16 January 1989, three days after speaking to Mr Ninness, Dr Roantree provided a signed statement to police. In the course of the statement he referred to the consultation he had had with the accused on 6 January 1989. He said that he had a lengthy conversation with the accused, the 'exact words of which' he was unable to recall. He said:

I asked him how his case was progressing, referring to the assault charge he was facing. I did this because I wanted to know if I was required for Court so I could re-arrange my schedule. He told me that he had been to see Col WINCHESTER, probably said he's been to see the Commissioner initially. He said words to the effect that the Commissioner had made him angry because he said "It's really getting to me this case." He then said words to the effect that "I wonder if I am getting better at all." By this I thought he was referring to his own paranoia. When he first started talking about this he said something like, "He was making me so angry I should have pushed him off his chair."

....

When Mr EASTMAN said to me "I think I am getting worse" I told him that in my opinion he was improving. As the conversation progressed Mr EASTMAN continued to express to me frustration and anger over the charges he was facing. At one point he said to me words to the effect of "The Police should be taught a lesson". I am pretty certain that this comment was made towards the end of the conversation, as he was leaving the office maybe. My opinion on this comment was one of him believing he was being persecuted by the Police and his anger and frustration at the so called lack of action being taken by the Police.

Mr EASTMAN showed definite anger over the pending court case, not so much anxiety as he seemed cool and calm over going to court but certainly not happy about actions taken by the Police. Mr EASTMAN only referred to WINCHESTER on that one consultation. He really showed anger at the Police and with WINCHESTER being at the top of the tree so to speak, anger at WINCHESTER.

1. The statement made by Dr Roantree to police on 16 January 1989 contained no reference to the statement 'I should shoot the bastard'.
2. In the course of the inquest Dr Roantree was cross-examined by the then solicitor for the accused, Mr Donald. Dr Roantree was referred to the record of conversation that he had had on 13 January 1989 with Mr Ninness and he agreed that he had then said 'I can't swear, but I think he said, 'I should shoot the bastard''. Dr Roantree stated that before that was said the accused had been talking about the interview that he had had with Mr Winchester. Dr Roantree agreed that after that discussion, a number of different matters were discussed before the accused returned to the topic and said 'The police should be taught a lesson'. Following that was the comment he recalled as to 'shooting the bastard'. Dr Roantree agreed that at the time that comment was made there was no immediate reference to Mr Winchester. In reexamination at the inquest Dr Roantree said that the accused had said 'the police should be taught a lesson'. He said the clearest statement that he could remember was that the accused had said that he 'felt like pushing the man off the chair'. Dr Roantree said he remembered that clearly because of the reaction of 'rage in the air' when Dr Roantree had responded to that statement. As to the statement 'I should shoot the bastard', Dr Roantree stated:

I think I must have been reasonably certain at the time I wrote it down, but I just have a niggling doubt, that is all, I cannot be absolutely certain. [My italics]

1. Subsequently Dr Roantree was asked a question by the coroner as to the significance of the crossing out of the phrase in question. Dr Roantree answered by saying:

Well, it was my own record initially the written statement and when I perused it afterwards I then could not be absolutely sure in my own mind that it was said, so I crossed it out rather than have something there that I could not be sure of. [My italics]

1. A conference was held with Dr Roantree and the then prosecutor, Mr Adams, and others from the office of the DPP on 21 September 1994, prior to Dr Roantree giving evidence at the trial. The notes of the conference state as follows:

Dr Roantree said that he is sure that Eastman said, "The police ought to be taught a lesson." He said, "had there not been something along those lines, I wouldn't have put it down".

He is confident of the recollection of those words, the anger used in saying those words and also confident of the fact that Eastman had said he felt like pushing Winchester off his chair. He said the words that he used in his note may not be exact words, but in substance it is what Eastman said.

....

Dr Roantree had a niggling doubt about whether Eastman said, "shoot the bastards", but he said that if the words were said there was no qualifier. He said that he does not remember hearing the words "shoot the bastards" in the context of it being "Idi Amin has the right cure, shoot the bastards to cure unemployment". He said that if those words had been used in a particular context he would have remembered the qualifier. He said that if Eastman had said it he would have remembered.

Roantree's record of conversation with Ninness was the first time he had talked to the police about Eastman. He said, "I thought I had better say to the police, have a look at this bloke. I didn't necessarily think he was a suspect but thought he was worth looking at.

1. In addition to the above material, Dr Roantree also swore an affidavit on 13 May 2013 for the purposes of the inquiry being conducted by Martin AJ. In the affidavit, and in response to the question being asked of him as to why the words 'I should shoot the bastard' appeared in his interview with police on 13 January 1989, but did not appear in a statement he made on 16 January 1989 to Detective Steve Jackson, he said:

I can only surmise that over the 3 days I developed doubt over my recall of the comment about shooting and, because I could not be totally sure, I felt more comfortable excluding it from my statement of January 16.

1. In response to a question as to whether he was able to explain the reasons why he decided to make a report of the matter to police Dr Roantree stated in his affidavit:

Many years have passed since these events. From my recollection, when I initially heard of the murder I made no connection to anything relating to my work. It was hours or days before I recalled discussions referring to Mr Winchester and even longer before I recalled that Eastman had been the person involved. On consideration, after making that connection, and knowing the history of alleged violence linked to Eastman, I became concerned about the possibility of his involvement. I was reticent to come forward at the time on grounds of medical ethics, but did so only when the police began to request assistance via the radio due to lack of progress in the case. The delay in coming forward was in the hope that alternative evidence may come to light. Eventually I decided that if indeed Eastman was responsible and not apprehended, and if he repeated that offence in the future when angered by somebody else then I would feel directly responsible. I relied on my personal conscience rather than requesting legal advice regarding the ethics of the situation. My intention was to put Mr Eastman forward as a person of interest but not make him a major suspect by virtue of my evidence. I believe that I may have made a subconscious decision not to be too incriminating, but equally I may have had some doubt about the reference to shooting being made. If my memory is accurate about the comment, I must say that the threat to shoot someone during a consultation is not rare and is taken as an overreaction during discussions about stressful experiences by patients or on other occasions in jest.

1. Subsequently on 23 January 2014, Dr Roantree gave evidence before the Martin Inquiry. The affidavit sworn by him on 13 May 2013 was tendered. Counsel assisting the inquiry referred Dr Roantree to the transcript of his interview with Mr Ninness on 13 January 1989 when he stated that he believed the accused had stated 'I should shoot the bastard' but that Dr Roantree could not swear to the fact that the accused made that statement. Dr Roantree answered 'Yes. I recall reading something like that'. Dr Roantree was then referred to the statement that he had made to police on 16 January 1989 when he made no mention of this statement by the accused of which he had informed police on 13 January 1989. Dr Roantree was asked whether that was an 'accidental omission or a deliberate choice?' He answered that it was a deliberate choice. Martin AJ then asked Dr Roantree as to why he had deliberately omitted that, to which Dr Roantree answered:

Because I believed that I couldn't remember accurately hearing that statement. I wasn't absolutely certain that I heard the statement. I thought I did but I wasn't absolutely certain.

1. Dr Roantree was then asked about the evidence that he had given at the inquest as follows:

And your evidence at the inquest was that effectively you crossed out the last line of your handwritten notes, which was "I should shoot the bastard"?---Yes.

Because you didn't wish to make Mr Eastman a major suspect?---Well, I didn't think that - I wasn't absolutely certain that that was said, or I couldn't be absolutely certain that was said. And so I crossed it out basically.

At the inquest, you informed the Coroner that you were reasonably - you accepted that you were reasonably certain that the threat was said?---Well, if that's what I said at the inquest, you know, that was much more recent after the event than now, so I'd have to take that as true.

1. In giving evidence before the Martin Inquiry Dr Roantree stated that his belief was that he had written the note which had the crossed out line in it before he 'contacted police for the first time'. This evidence is contrary to the evidence given by him both at the coronial inquest and at trial.
2. The answer that Dr Roantree had given at the first trial to Mr Adams that 'had I not recalled that accurately, I wouldn't have even mentioned it' was put to Dr Roantree in the course of him giving evidence before Martin AJ. He agreed that he did not remember the evidence so he accepted that he had said that at the trial. Dr Roantree stated that his current belief was in accordance with what he had stated in his affidavit of 13 May 2013 to the effect that:

I believe that I may have made a subconscious decision not to be too incriminating, but equally I may have had some doubt about the reference to shooting being made.

1. Quite clearly that evidence is reconstruction on the part of Dr Roantree.
2. Dr Roantree was then cross-examined in the following terms by counsel then acting for the AFP:

Dr Roantree, when you gave your evidence at the trial, you gave it to the best of your recollection and you believed it was truthful evidence?---Yes. I believe so.

And would you agree that your recollection when you gave that evidence on the events of when you saw Mr Eastman would be better at that time than they are today?---For sure. Having said that, there was a gap of several days and during which time I'd probably seen 50-100 patients before I actually sat down and recorded my extra recordings other than what was recorded on the medical documents. Can I just state how I used to operate my consultations? I would sit the patient down, I would have a preamble which I'd go through while I was talking to the patient - get my head into their space, find out where they were at, what was going on. I'd wash my hands, I'd clean up and get the desk ready. It was all a fairly low-key approach to relax the patient and to get me into a position of assessing their social, physical and mental health on just a day-to-day basis. In this case I spoke to Mr Eastman about his court case, and this is all very off the record, not official and this is where it all came about. Before he even sat down and started doing the consultation, and this is why it doesn't appear on the record because it was all in the preamble, and it wasn't important to me at the time, although I was amazed by the level of fury that came out when I challenged him on the fact he can't push police commissioners off their chair, and that's what made it stick into my memory. That reaction to my comment made that so it was unforgettable. Now, whether I said "shoot" - whether he said, "Shoot the bastard," or whether he didn't, that fury was unbelievable. Unbelievable. And that was of concern to me. There were a number of threats at the time as well, but I don't recall them. I mean, I was probably a bit shocked because I thought that I'd provoked this outbreak of fury because of challenging him on saying, "Well, you can't knock police commissioners off their chair," in a sort of a flippant sort of a way. But I thought for a moment he was going to assault me as a result of that. That was how furious he was at the time. And the level of fury is such that I would never have seen that in any patient at any time in my practice, before and since. I have difficulty believing it. So that's - whether he said "shoot him" or not, that was the key to what brought the whole thing to my mind. Now, I don't - no one's ever asked me this, but I thought it's important to bring it to the attention of the court, and seeing everybody's questioning, you know, everyone's skirting around the issue, in my view. Let's get to the nub of the issue and talk about what actually happened.

Thank you. The - - -?---I think we're being side-tracked by whether or not he said, "Shoot the bastard."

Defence submissions as to the admissibility of the evidence of Dr Roantree

1. It is submitted on behalf of the accused that the Roantree statements should be excluded pursuant to s 137 of the Act and that the statement 'I should shoot the bastard' should be excluded as a tendency incident pursuant to the same section. On the basis that the probative value is low, taking into account the expressed uncertainty by Dr Roantree as to whether or not the statement was made by the accused, it is submitted that there is uncertainty in the mind of Dr Roantree about the existence and content of 'both comments' meaning the statements that 'police should be taught a lesson' and 'I should shoot the bastard'. Mr Georgiou places considerable reliance on the fact that only days after the consultation with the accused Dr Roantree told Mr Ninness that he was not prepared to swear that the accused had made the statement, 'I should shoot the bastard', and furthermore that Dr Roantree had crossed out those words in the note that he made some days after speaking to Mr Ninness. At the inquest, at the trial and at the Martin Inquiry Dr Roantree expressed uncertainty as to whether the statement was made. Thus, argues the defence, the probative value is low and the danger of unfair prejudice is very high. It is submitted in this regard that there is danger that because of the temporal proximity to the date of the murder and the nature of the words alleged to have been used in the making of the statement, the jury may place too much weight on the threat and that their passions will be inflamed by the alleged making of the statement to the extent that they will not apply any warning given by the court in relation to their consideration of this evidence. It is submitted that the circumstances of this case are such that judicial direction may not be sufficient to cure the risk of unfair prejudice.
2. Defence also submits that the probative value of Dr Roantree's evidence should be considered in light of the evidence of Dr Roantree's daughter, who was 14 years old at the time of the consultation and was working as receptionist for Dr Roantree at his surgery. Ms Roantree gave evidence to the Martin Inquiry that she had had a discussion with the accused immediately after that consultation and he was friendly and his demeanour appeared to her to be normal. She had no recollection of hearing any threat uttered by Mr Eastman. It is submitted on behalf of the accused that her evidence suggests that the threatening comment was either not made and Dr Roantree is correct to doubt that it was made, or if it was made it was not made in a voice loud enough for Ms Roantree to hear and thus, it is said, could not be regarded as having been uttered in seriousness.

Prosecution submissions as to the admissibility of the evidence of Dr Roantree

1. As stated above the prosecution relies heavily upon the evidence given by Dr Roantree at trial (and set out in paragraphs 37 to 42 above) after having been permitted to refresh his memory from his note. In particular the prosecution argues that the following passage is of particular significance:

MR ADAMS: Now, as he left, did he say anything?---Well, I believe that he said, "I should shoot the bastard."

Now, dealing with that, I think you had that in your note but you crossed it out?---Yes, I did.

Why did you cross it out of your note, doctor?---I believe - my recollection of the events is that I had spoken to police before I wrote that note.

Yes?---And I'd told them that I thought that I recalled that but I wasn't - I told them I wasn't prepared to swear to that and so I took it off my note as well.

Why did you tell them that you weren't prepared to swear to it?---Well, I wasn't particularly happy about having to give - feeling obliged to give evidence about a patient and I didn't want the police to feel that my evidence was too important to them. I wanted them - all I wanted to do was suggest to them that perhaps they should look at this particular person but - but I didn't want to give evidence enough to - to make me the main witness.

Right. Now, the conversation that you referred to was a conversation with - I think with Mr Ninness on 13 January, is that right?---That's correct.

In which you expressed to the police reservations about your recollection of that event for the reasons that you've given?---That's right.

The crucial thing however is whatever reasons you had for that, what is the state - what was your state of recollection as to the use of those words?---I believe now that - that had I not recalled that accurately I wouldn't have even mentioned it.

1. As pointed out above the accused chose not to cross-examine Dr Roantree as to this evidence. The prosecution submits that when considered in its entirety the evidence of Dr Roantree has significant probative value which is not diminished by uncertainty. It is submitted that the threat deserves significant weight, being directed towards Mr Winchester in the days immediately prior to his murder. The prosecution submits that I should not accept the argument advanced on behalf of the accused that there is a real likelihood that the threat was not made, or that it was not made in the terms described by Dr Roantree. The prosecution observes that the evidence is that Dr Roantree had a genuine concern about the accused following the death of Mr Winchester, and that it was he who initiated contact with police to express such concern.
2. As stated in written submissions dated 25 November 2017, the prosecution agrees that the evidence of the statement is 'damning', however the prosecution argues that the threat was made:

.... before the murder of Mr Winchester at a time when the accused was expressing both his anger towards Mr Winchester and his concern about his pending hearing regarding Russo.

1. It is submitted that the jury will need to make an assessment as to whether it is likely that Mr Eastman possessed the motive to kill Mr Winchester. The prosecution argues that the statement is exceptionally powerful evidence supporting that motive and that as such, its probative value outweighs any unfair prejudice and that it should therefore be admitted into evidence. It is submitted that a warning under s 165 of the Act would ensure that the jury would not misuse or apply inappropriate weight to the evidence, although I observe that no submission was made as to the terms of what such warning might be.
2. The prosecution argues that there has been no change in the position of Dr Roantree as to the making of the statement in question. It contends that the best evidence is what he told Mr Ninness on 13 January 1989 which is 'I'm almost certain he said it'. The prosecution made oral submissions that when Dr Roantree says things like 'I could not be totally sure. I had a niggling doubt. I could not be absolutely certain' that 'that is completely understandable in circumstances where there is a doctorpatient relationship and he wants to be 100 per cent' sure. It is submitted that the evidence he gave at trial, that if the accused 'hadn't said it I wouldn't have written it down in the first place', is significant and if he crossed it out because he had 'niggling doubts' or because he did not want to be the main witness, is a matter for the jury to consider.
3. The prosecution submits that in reality the attack on the evidence of Dr Roantree by the defence is an attack on its reliability and that this is not such an 'extreme example such as the IMM v The Queen [2016] HCA 14; 257 CLR 300 ('IMM') example' and that the evidence of Dr Roantree is a matter for the jury, and not one where 'a judge could usurp the jury function'. It is submitted that the jury would be entitled to consider the statement in question in the light of all the evidence, including the extreme anger of the accused in describing his meeting with Mr Winchester and his statement to Dr Roantree that 'police should be taught a lesson'.
4. Furthermore the prosecution argues that the suggestion made by counsel for the accused that there is no clarity as to whether the statement made to Dr Roantree was made about Mr Winchester, is not justified by the evidence. It is clear that at the relevant time the accused was speaking about his frustrations following the meeting with Mr Winchester and how he wanted to push Mr Winchester off his chair. It is apparent that he was talking about Mr Winchester.
5. The prosecution of course relies upon such evidence as may be admitted under Tendency 4 to 'make it more likely that (the accused) did in fact make threats against Mr Winchester' as stated in the prosecution's written submissions filed on 17 March 2017. However, whilst such evidence may well be supportive of evidence which is affirmative and not equivocal, it seems to me to be hardly supportive in circumstances whereby, as here, the evidence is equivocal. By way of example, if a jury is satisfied beyond reasonable doubt that evidence of a tendency to engage in sexual relations with young children in a certain manner such as penetration of a vagina with a finger, that evidence may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing such sexual assaults. However that tendency could not be admissible to support the evidence of a victim that was equivocal. If a victim stated that she thought that an accused had so penetrated her vagina but could not swear positively to that and that she had doubts that that had happened, the application of tendency evidence could not possibly cure the lack of affirmative evidence.

The evidence of Dr Roantree that the accused said that 'the police should be taught a lesson'

1. It should be observed that neither the written or oral submissions of the parties deal in any detail with the issue of whether the first statement which is in dispute, being the statement that Dr Roantree states was first made to him by the accused near the end of the consultation on 6 January 1989, is separately admissible or is separately inadmissible. That is, the statement that 'the police should be taught a lesson'. Although in the course of his oral submissions Mr Georgiou did concede (at T752) that 'the considerations which apply' to the phrase 'I should shoot the bastard' do not 'apply to the other recollection of Dr Roantree, namely that the police should be taught a lesson', the defence, in its submissions, treats that statement as being in effect 'part and parcel' of the statement alleged to have been made by the accused that 'I should shoot the bastard'.
2. By written submissions dated 21 November 2017 the defence submits that 'the evidence of the two threatening comments as described by Roantree should be excluded under s 137.' Clearly the prosecution regards the two statements as being separate, although related statements. However, apart from submitting that both statements are of high probative value and that both should be admitted into evidence, the concentration from the viewpoint of the prosecution (as with the defence) is primarily upon the admissibility of the statement said to have been made that 'I should shoot the bastard'.
3. Nevertheless, as is apparent from the evidence and other statements of Dr Roantree, the evidence as to the making of the statement that 'police should be taught a lesson' is substantially different from the statement that is alleged to have followed it. As conceded by Mr Georgiou different considerations do apply to it.
4. In the course of his interview with Mr Ninness on 13 January 1989 Dr Roantree stated:

But he came back onto the subject, I think as he was leaving the office in the waiting room. Something to the effect that 'police should be taught a lesson'.

1. In the statement made to police on 16 January 1989 Dr Roantree said:

At one point he said to me words to the effect of 'The police should be taught a lesson.' I am pretty certain that comment was made towards the end of the conversation as he was leaving the office maybe.

1. In his note which may have been made before he spoke to Mr Ninness, or which may have been made soon after making both the above statements, Dr Roantree observed that the accused said 'the police should be taught a lesson. Every time something happens, I am suspected. Every time I report something I get the blame.'
2. In giving evidence at the coronial inquest on 6 September 1989, Dr Roantree stated that the statements he had attributed to the accused in his interview with Mr Ninness on 13 January 1989 were true and correct.
3. On 21 September1994 Dr Roantree attended a conference with the then prosecutor Mr Adams. Notes of that conference were made by a Ms Woodward of the office of the DPP. Those notes record the following:

Dr Roantree said that he is sure that Eastman said, "The police ought to be taught a lesson." He said, "had there not been something along those lines, I wouldn't have put it down".

He is confident of the recollection of those words, the anger used in saying those words and also confident of the fact that Eastman had said he felt like pushing Winchester off his chair. He said the words that he used in his note may not be exact words, but in substance it is what Eastman said.

1. The evidence given by Dr Roantree on 28 June 1995 at trial regarding this matter is as follows (at 2050):

I examined him and I dealt with the medical side of things. And then I began to write some referrals and as I was writing referrals he - he felt - he said that he felt that he - his condition may be deteriorating. And I stated that from my observations over the last 10 years I felt that his condition was improving. Then he made the comment that the police should be taught a lesson. Every time something happens he feels - felt that he was suspected and every time he reports - reported anything he got the blame. I then talked to him about what I had written referrals for and finished the consultation and - and that was the end of the consultation.

1. Dr Roantree also referred to the words 'police should be taught a lesson' when he gave the following evidence before the Martin Inquiry on 23 January 2014 in the course of crossexamination by Dr Dwyer of Counsel who appeared on behalf of the DPP:

DR DWYER: Dr Roantree, you spoke earlier again today about some threats being made during the consultation. You can't remember the exact nature of them?---Well, I've actually said, "Police should be taught a lesson," was actually on my evidence.

Okay?---I noticed. But there were - there could have been other things that I didn't remember.

Okay?---But I couldn't possibly say now.

But when you refer to threats, "the police should be taught a lesson" was one of those threats that you're referring to?---Yes.

And can you recall whether that was said in the fury that you've described in court today?---Well, I think it was in the course of settling down from the fury.

Conclusion as to the admissibility of the evidence of Dr Roantree

1. Dealing first with the evidence of Dr Roantree that the accused told him that 'Police should be taught a lesson' it is apparent, as stated above, that different considerations apply to that statement than to the statement 'I should shoot the bastard'. Dr Roantree has consistently asserted that those words, or words very similar to them, were used by the accused in the course of his consultation with the accused on 6 January 1989. Although in giving evidence before Martin AJ in 2014 Dr Roantree stated that he thought those words may have been used earlier in the conversation than he had previously stated, there is no other significant inconsistency in his evidence about this statement. The equivocation that Dr Roantree had expressed in relation to the statement 'I should shoot the bastard' does not apply in relation to the statement now under consideration by me. The statement is clearly probative, going as it does to the state of mind of the accused in the days leading up to the death of Mr Winchester. In my view, and of course subject to an appropriate direction to be given to the jury, the probative value of this evidence far outweighs any risk of unfair prejudice.
2. Turning to the second statement in contention, there can be little doubt that counsel for the accused has ample material with which to attack the evidence of Dr Roantree as to the making of the statement 'I should shoot the bastard'. As observed by Martin AJ in his report at [1361] a number of issues arise as to the evidence of Dr Roantree which could have been, but were not, explored in the presence of the jury at the first trial. Those issues include the question of when Dr Roantree made his note, the uncertainty expressed by Dr Roantree as early as 13 January 1989 when he told Mr Ninness that he was not sure and could not swear to, but thought the accused had said 'I should shoot the bastard'.
3. Additionally there are issues arising from the absence of reference to 'shooting the bastard' in Dr Roantree's typewritten statement of 16 January 1989 and the deletion of the passage from his note, as well as the statement made by Dr Roantree on 13 January 1989 that the remark made by the accused was 'just a parting quip' as the accused went out the door. Those matters together with the statement made by Dr Roantree on 21 September 1994 to the then prosecutor that he had a 'niggling doubt' about whether the accused uttered those words are all matters fertile for crossexamination. As observed by Martin AJ, there is the probability that had Dr Roantree been cross-examined in a competent manner at the first trial, he would have given the evidence that he gave to the Martin Inquiry to the effect that the omission of the words from his statement of 16 January 1989 was a deliberate omission because he was not absolutely certain they had been said and, if the words were uttered, it was a passing quip well after the accused had settled down from his earlier outburst.
4. As Martin AJ stated in his report at [1363]:

A combination of these matters had the potential to create uncertainty as to whether the words were uttered. Even if the words were uttered, competent cross-examination could have presented quite a different complexion. Rather than the prosecution case of an angry man making a threat to kill, it was a passing quip made by a person who had been extremely angry, but had calmed down and made the 'passing quip' as he left the doctor's consulting room.

1. That said however, the task before me is to assess the probative value of the evidence to be given by Dr Roantree as to the alleged threat 'I should shoot the bastard'. I observe that neither the prosecution nor the defence sought to conduct a voir dire before me in respect of the evidence proposed to be given by Dr Roantree. It would appear likely that had a voir dire been conducted, Dr Roantree would have been unable to say little more than he did in the affidavit provided to the Martin Inquiry and in his evidence before Martin AJ, which on any view contained reconstruction on his part, such as when he said in his affidavit of 13 May 2013 at [7]:

.... I believe that I may have made a subconscious decision not to be too incriminating, but equally I may have had some doubt about the reference to shooting being made.

1. It should be observed that there is evidence that Dr Roantree had a concern about his ethical obligations to his patient, the accused. It will be recalled that when he spoke to Mr Ninness seven days after his consultation with the accused he stated:

I'm not sure, I can't swear to it but I think he said "I should shoot the bastard", but I am not sure'.

1. As stated above, no reference was made to the threat in his police statement made ten days after the consultation. Subsequently, Dr Roantree gave evidence on 6 September 1989 before the Coroner. It is clear that Dr Roantree made an objection to giving evidence. The details of his objection are not revealed by the Inquest transcript but at p 712 the Coroner is recorded as saying:

Dr Roantree, I think I should inform you that I have put on record the fact that you are giving this evidence under objection and that objection has been heard and dismissed.

1. It is safe, I think, to assume that the basis of the objection was that Dr Roantree had a concern about possible breach of his ethical obligations to his patient. In the course of giving evidence before the Coroner Dr Roantree stated that on the evening of 11 January 1987 before speaking to Mr Ninness he:

...thought about it that night, tossed around the pros and cons of ethics, etcetera, and then decided on the 12th that I had to at least make it known because it was not my place to decide whether it was relevant or not, it was my place just to report it and for somebody else to decide whether it is relevant or not, and then I made contact on the afternoon of the 12th and subsequently the interview was done on the 13th.

1. Subsequently and in the course of giving evidence at the first trial Dr Roantree was asked by the then prosecutor as to why he told police that he was not prepared to swear to the fact that the accused made the threat against Mr Winchester. Dr Roantree answered as follows:

Well, I wasn't particularly happy about having to give - feeling obliged to give evidence about a patient and I didn't want the police to feel that my evidence was too important to them.

1. In the course of giving evidence before Martin AJ, Dr Roantree responded as follows to questions asked by then counsel for the DPP:

Dr Roantree, finally can I suggest to you that you are someone with a strong understanding of your ethical obligations?---Sure.

And you were then back in 1995?---I believe so.

And you were in the years that preceded that?---M'mm, I believe so.

And it caused you some concern that you had to balance your obligations of patient confidentiality with your civic duty?---Definitely.

And you thought about that very carefully?---M'mm.

1. Dr Roantree's doubts about whether or not the statement was made by the accused may be premised upon too high a standard (that he was 'not absolutely sure') and perhaps coloured by an understandable, but erroneous, concern related to his ethical obligations to his patient. However, the implied suggestion that Dr Roantree crossed out the threat from his original note and that he made no mention of it in his police statement of 16 January 1989 by reason of a misunderstanding on his part as to his ethical obligations, has never been raised with him. If that were the case he has had ample opportunity to say so. Had that explanation been given, it would clearly be a matter for the jury to consider. However, that is not the explanation consistently provided by Dr Roantree. Throughout the period since January 1989 (and despite some reconstruction at the first trial) the evidence of Dr Roantree as to this matter has been generally consistent with what he said to Martin AJ on 23 January 2014 (at transcript page 1553) as follows:

HIS HONOUR: Why did you deliberately omit it?---Because I believed that I couldn't remember accurately hearing that statement. I wasn't absolutely certain that I heard the statement. I thought I did but I wasn't absolutely certain. [My italics]

1. At the highest, the evidence of Dr Roantree is equivocal. It is not affirmative as to whether or not the words 'I should shoot the bastard' were said. Taken at its highest, the evidence is not such that a jury would be capable of reaching a positive conclusion that the accused said 'I should shoot the bastard'. This is not a question of ambiguity or of competing views (each of which may be open) as to the meaning of the evidence such as that considered in R v SJRC [2007] NSWCCA 142. Nor is it a question of reliability or credibility. There is no suggestion that the evidence of Dr Roantree is unreliable or lacks credibility. As stated by Forrest J in R v Debresay (Ruling No 1) [2016] VSC 487 at [14] when referring to the majority approach in IMM v The Queen [2016] HCA 14; 257 CLR 300:

.... whilst a judge must eschew consideration of factors that may impact upon the credibility or reliability of a witness's account, the Court must not lose sight that the account itself, taken at its highest, may not be that good. A witness may be perfectly honest and impeccably reliable as an historian but his or her description of an event may be subject to all sorts of limiting factors which have nothing to do with that witness's honesty or reliability.

1. In my view the evidence of Dr Roantree as to the making of the threat under consideration is so equivocal that it lacks substantial probative value. On the other hand there is, in my view, a risk of unfair prejudice arising from the evidence. As stated above the highest the evidence reaches is that it may be that the accused used the words in question, but it is equally possible that he did not. In such circumstances the risk that the evidence would be used by the jury in some unfair way is obvious, particularly taking into account the proximity of the alleged threat to the date of the murder of Mr Winchester.
2. It is of course necessary for me to give consideration as to whether I can give directions and a warning to the jury which would ameliorate the risk of the evidence being used by the jury in an unfair way. Taking into account the fact that the evidence is simply not capable of being seen to be affirmative evidence I have grave difficulty in determining what direction could ameliorate the prejudice and the high risk that a jury may give the evidence more weight than it should. Assuming that Dr Roantree were to give similar evidence to that which he gave at the first trial and before Martin AJ, no doubt I could point out to the jury that the evidence of Dr Roantree as to the threat at this time is not based on memory, but is based upon reconstruction. I could direct them that at all times since first speaking to Mr Ninness soon after the consultation in question with the accused Dr Roantree has expressed doubt as to whether the words were in fact used by the accused. However, notwithstanding such directions I consider that there is a high risk that a jury could give the evidence more weight than is justified by the evidence.
3. In such circumstances, I must address s 137 of the Act. The question is whether the qualified affirmative probative character of the evidence is outweighed by the undoubted prejudicial effect of it. As is evident from the terms of the legislation and established authority, s 137 (unlike s 135) is mandatory, not discretionary, if its elements are established and (again unlike s 135) the outweighing of probative value by the danger of unfair prejudice does not require a substantial outweighing.

1. Accordingly, I am required by s 137 of the Act to exclude the evidence of Dr Roantree as to the words 'I should shoot the bastard' having concluded, as I have, that the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused.

1. The orders to be made therefore are:
   • (a) The evidence of previous representations made by Mr Dennis Barbara at the first trial on 18 July 1995 is admissible pursuant to s 65(3) of the Act.
   • (b) The evidence of Dr Roantree as to the words 'The police should be taught a lesson' is admissible.
   • (c) The evidence of Dr Roantree as to the words 'I should shoot the bastard' is not admissible pursuant to s 137 of the Act.
   • (d) Until further order the reasons for this ruling are not to be published other than to the parties and their legal representatives.

I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.