[2018] ACTSC 124

CRIMINAL LAW - EVIDENCE - Admissibility of evidence proposed to be led pursuant to the Evidence Act 2011 (ACT) s 67 notice whether evidence irrelevant and inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) - whether evidence should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT) because its probative value is outweighed by unfair prejudice to the accused - secondhand hearsay not admissible pursuant to s 65(2) of the Evidence Act 2011 (ACT) - secondhand hearsay is not an exception pursuant to s 78(a) of the Evidence Act 2011 (ACT) and is inadmissible pursuant to s 76 of the Evidence Act 2011 (ACT)

Evidence Act 2011 (ACT), ss 56(2), 76, 78, and 137

R v Eastman (No 34) [2018] ACTSC 68

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 defence submits that the evidence of Michael Frodyma, Maurice Kennedy, Phillip Bewley, Theresa Bewley, Peter Paramore, Alan Anforth and Helen Vick should not be admitted into evidence in the trial of the accused. In essence the objection to this evidence is that much of it is irrelevant and thus is inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) (the 'Act') and or in the alternative should be excluded pursuant to s 137 of the Act because its probative value is outweighed by the danger of unfair prejudice to the accused.

2. Michael Frodyma and Maurice Kennedy both gave evidence at the first trial. Mr Kennedy is now deceased and the prosecution has filed a s 67 notice in respect of the evidence it seeks to lead in relation to him.

3. The prosecution amended case statement dated 21 August 2015 states that:

On 31 August 1987 Michael Frodyma, an employee of the Department of Finance, spoke with the accused regarding an application for an 'act of grace' payment which had been rejected by the Department. During the telephone call Mr Frodyma recalls the accused becoming increasingly angry, culminating in the accused stating that he "ought to come around with a baseball bat and knock [his] fucking head in".

4. Mr Frodyma gave that evidence at the first trial (at trial transcript p 2320).

5. The s 67 notice filed in respect of Mr Kennedy sets out the substance of the previous representations of Mr Kennedy that are relied upon by the prosecution as being that in August 1987 he was working as Assistant Secretary of the Financial Administration Advisory Branch in the Department of Finance. Mr Frodyma was his subordinate. On 31 August 1987 Mr Kennedy had a telephone conversation with the accused in which the accused called him 'a fucking liar, deceitful and a fucking bastard' and told him that he was 'included in' a threat that the accused had made to come around and bash Mr Frodyma's head in with a baseball bat.

6. The defence argues that as the incidents referred to above have been ruled by me to be inadmissible as tendency evidence, the evidence is not relevant to any fact in issue, or in the alternative that its probative value is outweighed by the danger of unfair prejudice. First, it submitted that the evidence sought to be relied upon is remote, having occurred in August 1987 and in the context of the accused seeking an 'act of grace' payment relating to an issue about forfeited sick leave when he resigned from the Department of Treasury in June 1977. It is argued that even if there is a proper link to the accused's motive to return to the Australian Public Service ('APS'), there is ample other evidence that the accused had expressed a desire to return to the APS and that this evidence is not necessary to prove that matter. Further, it is argued that the incidents are extraneous to the prosecution case on motive which the defence summarises as being that the accused desired to return to the APS, saw the Russo charge as an impediment to his return and when Mr Winchester refused to take action on that matter, the accused formed a murderous intent towards him.

7. The defence submits that all that this evidence demonstrates is that the accused 'had difficulties in relation to his interpersonal relationships with people and on some occasions, if the evidence is accepted, made threats towards people'. It is submitted that the evidence reveals no more than that it is 'something said [by the accused] in the heat of the moment that nothing comes from'.

8. In the alternative, it is submitted on behalf of the accused that the probative value of the Frodyma/Kennedy incident is very low and that the danger of unfair prejudice to the accused is real and that the jury may use the material to assess the character of the accused and be prejudiced against him. It is further argued that as a very senior public servant Mr Kennedy may well have been known to many members of the community, and that prejudice against the accused may arise by reason of that fact. For the above reasons it is submitted that the evidence in question is irrelevant and inadmissible.

9. In addition, the defence maintains that a note made by Mr Kennedy and which is relied on by the prosecution in the s 67 notice contains parts that are inadmissible by reason of being secondhand hearsay.

10. In addition to the issues relating to Michael Frodyma and Maurice Kennedy and by written submissions filed on 23 April 2018 and supplemented by oral argument on 30 April 2018 the accused submits that the whole or parts of the evidence of Mr and Mrs Bewley, Mr Peter Paramore, Mr Alan Anforth and Ms Helen Vick should be excluded from the evidence to be led before the jury.

11. The substance of the evidence to be given by Mr and Mrs Bewley is summarised in R v Eastman (No 34) [2018] ACTSC 68 ('R v Eastman (No 34)') at [58]. The defence accepts that parts of the evidence of Mr and Mrs Bewley are relevant as being demonstrative of the desire of the accused to re-enter the APS. However, it is submitted that the evidence of Mr Bewley that in the course of their conversation in early December 1985 the accused had said 'I just feel sometimes I could get a gun and kill someone' should not be admitted into evidence. Likewise it is submitted that the evidence of Mrs Bewley which is that the accused said 'I get so angry sometimes I could go out and get a gun and kill someone' should not be admitted. In addition the evidence of Mrs Bewley that the accused had stated that he had punched Mr Peter Paramore, and that he had 'thrown some orange juice over an officer from the Ombudsman's office', should not be admitted.

12. It is submitted on behalf of the accused that the evidence of Mrs Bewley that the accused had admitted to her the assaults upon Mr Paramore and the Ombudsman's officer should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT) (the 'Act') on the basis that the risk of unfair prejudice outweighs the probative value of the evidence.

13. As to the statement made to the Bewleys by the accused that he felt so angry that he could 'get a gun and kill someone', it is submitted on behalf of the defence that the probative value of the statement is low. In this regard the defence relies upon the temporal gap between the making of the statement and the death of Mr Winchester, the fact that the comment reflects no animus towards police, and that, in the view of the defence, it is likely that the statement was an expression of frustration rather than a threat, as being considerations relevant to assessing the probative value of this evidence.

14. Furthermore it is submitted on behalf of the defence that the language said to have been used by the accused is such that there is a significant risk that the jury may be inflamed by it and misuse the evidence so as to reason that the accused is a violent person with homicidal thoughts and that by reason of that he is the sort of person who could have killed Mr Winchester.

15. The prosecution submits that the evidence of the Bewleys is highly probative. The entire discussion with the Bewleys concerned re-entry into the APS. The comment from the accused to the effect that sometimes he felt that he 'could get a gun and kill someone', was said in the context of a discussion concerning his dispute with the Commissioner of Superannuation revealing his anger at the impediments facing him as to his reemployment with the APS. It is argued that the temporal gap between 1985 and January 1989 is, in the context of the prosecution case, irrelevant and that the link between Mr Winchester's refusal to intervene in the Russo charge, and the ramifications that any conviction would have upon his re-entry into the APS, is apparent and is an important part of the prosecution case.

16. Mr Paramore did not give evidence at the first trial, but evidence of an admission of an assault by the accused upon Mr Paramore arose in the course of the evidence of Mrs Bewley and in the course of the crossexamination of the accused. The prosecution has however given notice of its intention to lead evidence in the forthcoming trial of the accused from Mr Paramore as to the alleged assault, and as to the desire of the accused to re-join the APS.

17. Police interviewed Mr Paramore on 28 February 1991 and a typed record of that conversation was made. In addition Mr Paramore provided a statement to police in 1994, but it appears that statement was not dated or signed. A further unsigned statement dated 11 May 1995 appears to have been made by Mr Paramore.

18. In the record of conversation dated 28 February 1991, Mr Paramore stated that he was at that time a public servant employed with the Department of Education and Training. He said that he had first met the accused in approximately 1991 when Mr Paramore was working at the Office of Multicultural Affairs and the accused came to that office with 'a range of complaints'. Later Mr Paramore transferred to the Office of the Commonwealth Ombudsman. Whilst there he had a number of dealings with the accused who was a complainant to the Ombudsman about a variety of matters. Subsequently Mr Paramore became secretary of the Public Sector Union ('PSU'). In that capacity he also had a number of dealings with the accused. On an occasion in 'about early 86' the accused walked into the office of the PSU at about 5 o'clock on a Friday evening. Mr Paramore recognised the accused by sight. At the time Mr Paramore was having an 'after work' drink in an area at the top of some stairs at the PSU office. The accused walked up to the area where Mr Paramore's office was. Mr Paramore called out and asked him 'who was he looking for' to which the accused said 'Peter Paramore'. Mr Paramore said 'well you've found him'. Mr Paramore described what happened next in the following terms:

.... And he came down then and started to tell me what he wanted, what had to be done and so on. I stopped him at that stage and told him that we would make an appointment for him if he liked, but I didn't intend to speak to him now, particularly in the light of him abusing our staff, and I wanted that to stop. He called me a few names and so on, and I ignored him and turned away. I was sitting in a chair resting against the wall, and he hit me in the side of the head and hit my head into the wall, it was a fair degree of force, I had a bit of concussion and so on, but that was all. And then I and a couple of the other people basically subdued him and put him outside carefully.

19. In addition to his statement relating to the assault, Mr Paramore made a number of statements in the course of the record of conversation relating to the desire of the accused to rejoin the APS. Mr Paramore said in answer to question 19:

.... I think one of the main ones at the time was that he was in the process of being retired for invalidity on the grounds of a range of mental health issues, and he was challenging that, and clearly as he stayed out of employment he got more upset about the situation and fairly more frustrated, he clearly became more angry about the situation I think, and more frustrated. But all of that, you know, all of that's very much judgemental.

....I think to be fair to David, he was clearly frustrated with what was going on and he expected the Union to get the result he wanted, and he wasn't getting the result he wanted and clearly that would have led him to very great frustration. The result he wanted was for the Union to back up his claim that he wasn't in any way emotionally disturbed. And at that stage the Department wasn't wearing it, and so he was still out of employment and he was very frustrated, that's quite true too.

21. The unsigned statement of Mr Paramore dated 11 May 1995 is as follows:

1. I first met David Eastman in about 1982 when I was working in the Office of Multicultural Affairs. He approached the Office to seek its assistance in getting back into the Public Service even though this was outside the scope of the Office's charter.

2. I subsequently had contact with him in relation to the same issue when I worked in the Commonwealth Ombudsman's Office and when I became Secretary of the Administrative and Clerical Officers' Association.

3. On a number of occasions Eastman spoke to me about his desire to re-enter the Public Service. He would say things like:

"I want to get back into the Public Service."

"They had no right to throw me out."

"They are victimising me."

"My profession has been taken away from me."

"My standing as a professional is being diminished by the attitude the Public Service is taking towards me."

4. When he spoke in these terms his demeanour was one of obsession, frustration and anger.

5. The last time I had any contact with Eastman was in 1986. I was then the secretary of the ACOA. After work on a Friday I was having a drink with a number of my work colleagues when Eastman arrived. He started to talk to me about the things he wanted done and I said that I would not talk to him at that time and suggested that he make an appointment to see me if he wanted to discuss anything. I was sitting in a chair and he punched me on the side of the bead. He was ejected from the building by my colleagues.

22. As to the statements made by Mr Paramore relating to the desire of the accused to rejoin the APS contained in the record of conversation dated 28 February 1991 and in the unsigned statement dated 11 May 1995, the defence likewise submits that such evidence is inadmissible. It is argued that in neither the record of conversation dated 28 February 1991 nor in the statement dated 11 May 1995 is it clear as to whether Mr Paramore is basing his opinion on evidence that he had directly seen, or heard, or whether it is based upon information provided to him by others. It is submitted that some of what Mr Paramore says is speculative and further, that it is opinion evidence which does not comply with ss 76 and 78 of the Act.

23. The prosecution argues that the evidence of Mr Paramore as to the assault on him is relevant. It is argued that the relevance arises by reason of the connection that Mr Paramore had with the APS and the context of his association with the accused. It is submitted that the evidence of Mr Paramore is directly related to motive.

24. Mr Anforth did not give evidence at the first trial, but the prosecution has stated that it intends to call him to give evidence in the forthcoming trial. The substance of the evidence relating to a threat made to Mr Anforth is set out in R v Eastman (No 34) at [82]. In essence the evidence of Mr Anforth is that he had dealings with the accused at a time when Mr Anforth had acted as counsel for the Commissioner for Superannuation at the hearing held in 1986 of an appeal by the accused to the Administrative Appeals Tribunal ('AAT'). The determination of that hearing was handed down in November 1986. About a year later in 1987 Mr Anforth was at a restaurant when the accused approach him, held his fingers in the shape of a gun towards Mr Anforth's head and said 'Bang, I'll get you, you bastard'.

25. It is submitted on behalf of the accused that there is ambiguity in what the intention of the accused was in making the threat and that nothing is disclosed by the incident which reflects upon the likelihood of the jury finding that the accused had a motive to kill police or Mr Winchester. The incident occurred before the Russo altercation, was not directed towards a police officer, and occurred in the context of a chance meeting between the accused and Mr Anforth. On this basis it is argued that the probative value is low, but the prejudicial effect is high and that there is a significant risk that the jury may be inflamed by the evidence and may misuse it. Furthermore, complaint is made as to other evidence contained in Mr Anforth's statement, including the fact that evidence obtained by Mr Anforth during the AAT proceedings indicated that the accused 'was a violent man, he detested having women in a position of authority over him and he was still very much of a paranoid nature'. Other statements by Mr Anforth, that the accused was capable of violence, used violent language and made nasty comments, and had made a threat against Mr Anforth's family, are argued to be attacks on the character of the accused and are thus inadmissible.

26. Furthermore, the defence argues that the evidence of Mr Anforth is highly prejudicial and may lead to the jury placing too much emphasis on the evidence and might lead to the risk of them improperly reasoning that because the accused said what he did, he is a violent person and the type of person who would have killed Mr Winchester.

27. The prosecution submits that the evidence of Mr Anforth has relevance because the accused was very upset that he had lost the AAT application which Mr Anforth had conducted on behalf of the Commissioner for Superannuation. That case related directly to the accused's APS re-entry. It is argued that the fact that Mr Anforth received multiple abusive phone calls from the accused after having dealt with him in a professional capacity, including the evidence that the accused told Mr Anforth that he knew where he lived, that his family was there and that he was going to get him, is relevant as being reflective of the state of mind of the accused.

28. Ms Vick gave evidence at the first trial and the prosecution intends to call her to again give evidence at the upcoming trial. Her evidence was previously the subject of consideration by me in R v Eastman (34) at [106-121]. In summary the evidence relates to an alleged threat made by the accused to Ms Vick in relation to his resignation and attempts to return to the APS. Ms Vick worked for Senator Haines from whom the accused had sought assistance in securing an 'act of grace' payment and a temporary work trial. Ms Vick gave evidence that the accused said to her that:

.... if this situation wasn't going to be worked out, perhaps he'd have to kill somebody to get the necessary publicity, so that people could see the injustice that had been done to him.

29. The defence submits that such evidence ought to be excluded under s 137 of the Act. It is submitted that the evidence is of little probative value and that it is not clear that the statement was a threat, rather than a statement made in frustration, in anger or as an attempt to manipulate Ms Vick. It is submitted further that as observed by the Coroner the evidence is 'too general and too remote in time to be used as evidence of intent in relation to Mr Winchester'.

30. Furthermore it is submitted that there is a danger that the jury will place too much weight on this evidence and improperly reason that because Mr Eastman said what he did, he is a violent person and the type of person who would have killed Mr Winchester.

31. The defence further submits that the prosecution can lead ample evidence of the desire of the accused to return to the APS and that the prosecution does not need to rely on evidence of general threats, such as the threat made by the accused reported by Ms Vick (and the threat made in the presence of the Bewleys, and the threats to Mr Paramore and Mr Anforth), in order to illustrate the state of mind of the accused at various times in the years leading to the death of Mr Winchester.

32. The prosecution argues that the evidence of Ms Vick is relevant and important, just as it was in the first trial. Furthermore, it is argued that the evidence of Ms Vick, to the effect that she asked the accused if his threat was serious and the fact that he did not resile from it when she said she would call the police, is relevant as to motive.

33. The defence concedes that, apart from Mrs Bewley's evidence that the accused spoke of an assault upon Mr Paramore and of throwing orange juice at an Ombudsman's officer, the evidence of Mr and Mrs Bewley is relevant. It is also conceded that the evidence relating to Mr Paramore, Mr Anforth and Ms Vick is relevant, but the defence submits that the probative value is low. It is submitted that the prosecution case that there was a buildup of frustration on the part of the accused and that his conduct demonstrates his intense, burning desire to rejoin the APS is not supported by the evidence. Ms Line on behalf of the accused submits that the slew of incidents dealt with by me in the course of my determination of the tendency arguments demonstrate 'that even prior to incidents such as the Paramore incident in 1986 [the accused] was alleged to have been not just threatening people but actually assaulting people'. Ms Line referred to the evidence that the accused had assaulted Ms Vogstshmidt in 1985, the evidence of him stalking Ms Argent in 1985, together with assaults by the accused upon a number of persons subsequent to the death of Mr Winchester.

....clear that over the course of his life, [the accused] has had problems getting along with people and many times it's alleged that this has resulted in him lashing out. It's not that he has a burning desire, distinguished from all other areas of his life, that caused him to make threats and assault people.

.... we see that he has done this kind of behaviour allegedly in his romantic life, in his social life, in his commuting on the bus, in his finances with his request to Mr Frodyma and Kennedy about an act of grace payment, in his carpark in relation to Mr Russell [sic] in 1987, and in 1990 again alleged to have assaulted Mr Poole and Ms Olarenshaw [sic] about the carpark, and also in relation to his family regarding the incidents alleged about his parents.

36. In such circumstances it is submitted on behalf of the accused that it is artificial for the prosecution to rely on the Bewley, Anforth, Paramore and Vick incidents to say that 'this is the area in Mr Eastman's life in which he acts passionately, this is the area in Mr Eastman's life' in which he 'makes threats and assaults and it's a build-up of frustration'. Thus, as I understand the argument advanced on behalf of the defence, there is evidence (which is not to be admitted) that the accused has behaved in an abusive, threatening and violent manner on many occasions in all aspects of his life, and the fact that he might also have done so in relation to his frustration at and dealings with the APS as well is being selectively and artificially used by the prosecution.

37. In my view the fact that the accused may have acted in an abusive and threatening manner in different social circumstances from those associated with his employment issues with the APS, does not say that the evidence as to the intensity and strength of his frustrations and anger with the APS is not probative.

38. However the central thrust of the defence argument is that the incidents upon which the prosecution relies are, by reason of their nature, effectively uncharged acts. It is submitted that there is evidence to be admitted in the case which is independent of the incidents in question, but which is capable of demonstrating the prosecution contention that the accused desired to rejoin the APS. In this regard the defence relies upon the s 67 notices which have been filed in relation to Mr Lorenz and Ms Nicholls, and also the letters to Ms Finke which have been admitted into evidence in which the accused's anger about the Russo assault is referred to as well as his desire to reenter the APS. Accordingly it is submitted there is little incremental probative value in the additional evidence relating to the incidents under consideration. It is argued that in this context the evidence of these uncharged acts 'just goes to show [the accused's] unsavoury character and will poison the jury against him'.

39. In response the prosecution submits that the evidence which relates to each of the incidents in question comes from witnesses who have a direct and important connection to the prosecution case. It is submitted that an admission that the accused:

.... desired to get back into the public service is nowhere near enough with respect to a motive for murder, given the evidence the Crown has, has led before and proposes to lead again. The intensity, the ongoing nature of the conduct, the stark resilience, the ongoing fighting et cetera, et cetera, well transcend words such as desire.

40. The prosecution submits that the incidents are examples of an underlying state of mind and conduct reflective of ongoing frustration.

41. The prosecution argues that the defence submissions ignore the manner in which the prosecution puts its case. It argues that the issue to which this evidence relates is not only the desire of the accused to re-enter the APS, but the intensity of his desire to return. The intensity of his anger towards people in the APS, the level of his frustration and feelings of persecution are relied upon by the prosecution in relation to motive. It is submitted that the seniority of Mr Kennedy demonstrates that no-one was beyond the scope of the accused's anger and resentment. The fact that Mr Kennedy was a senior public servant is argued to be part of the prosecution case in that senior people were ultimately targeted by the accused as the subjects of his anger. It is submitted that it would be artificial and unfair to the prosecution to exclude such evidence as the jury may ask itself why the accused would murder someone merely because he wished to return to the APS. It is submitted that the exclusion of such evidence would significantly undercut the motive evidence and leave it in a vacuum.

42. I accept that much of the material referred to above is relevant to the manner in which the prosecution seeks to advance its case. The prosecution contends that the evidence of each of the witnesses referred to above is 'powerful evidence' showing the deep and intense desire of the accused to return to the APS and the intensity of the anger and frustration he felt at perceived injustices and the problems he faced in returning to the APS. In that regard, I consider there is weight in the argument that the evidence is directly illustrative of his state of mind in a way that would not be apparent from the evidence of other witnesses, such as Ms Nicholls and Mr Lorenz.

43. However the defence argues that even if the evidence has some probative value the prejudicial effect of the evidence, both of the individual effect of the evidence and of the combination of the witnesses, is such that it outweighs any probative value of the evidence and is inadmissible pursuant to s 137 of the Act. It is submitted in particular that the threat to cause physical harm to witnesses or to others amounts effectively to evidence of uncharged acts which may cause the jury to engage in impermissible and unfair reasoning.

44. In my view there is weight in the concern of the defence as to unfair prejudice. Although I consider that the evidence of each of the above witnesses is probative as to the manner in which the prosecution puts its case, relating to the anger and frustration of the accused and the connection between that long simmering state of mind and the likely ramifications upon the accused of a conviction for assault in relation to the Russo matter, I am concerned that the combined weight of the evidence may reach a point that the danger of unfair prejudice outweighs the combined probative value of the evidence. It is the cumulative weight of the number and nature of incidents proposed to be relied upon by the prosecution which causes that concern.

45. I consider that the combined volume of evidence of abusive, threatening and, in the case of Mr Paramore, violent conduct on the part of the accused is not necessary for the purposes of the prosecution case and does present a danger of the jury impermissibly reasoning that the conduct of the accused on these occasions was so despicable that it might be thought that the accused is the type of person who would commit a murder. Quite clearly judicial directions will need to be given to ensure that the jury do not engage in such propensity reasoning.

46. In an endeavour to achieve the appropriate balance between the probative value of the evidence, which undoubtedly goes to proof of a relevant issue by the prosecution, and the risk that the jury, despite directions to the contrary, may use the evidence or be affected by it in an impermissible way, I make the following determinations.

47. The probative value of Mr Frodyma's evidence exceeds any unfair prejudicial value. The jury will be directed as to how the prosecution contends the evidence is relevant and will receive directions as to the manner in which the evidence may not be used.

48. Likewise the evidence given by Mr Kennedy at the first trial is admissible. The note, included in the s 67 notice, upon which the prosecution seeks to rely does not appear to me to contain any admissible evidence beyond that which is the subject of Mr Kennedy's oral evidence given at trial. In particular the part of the note which records what Mr Frodyma alleged the accused had said to him is secondhand hearsay and not admissible pursuant to s 65(2)(b) of the Act.

49. In addition, clearly the statement contained in the note that 'Mr Frodyma voiced some concern that [the accused] might harass his family - a concern with which I agreed' is speculative and unfairly prejudicial.

50. In my view, the evidence proposed to be led from Mr and Mrs Bewley is admissible except for the evidence that the accused had stated that he had punched Mr Paramore and thrown orange juice over someone from the Ombudsman's office. Mrs Bewley's evidence does not suggest that the Ombudsman incident has anything to do with the accused's desire to reenter the APS. I agree with the defence submission that the leading of this evidence through Mrs Bewley is peripheral to the facts in issue and merely serves to show the accused to be an irascible and unlikable person. As for the statement made by the accused that he had assaulted Mr Paramore, I am of the view, for reasons expressed below, that such evidence should not be admitted. Apart from those matters, the evidence is probative. The discussions the accused had with Mr and Mrs Bewley, and the comment made by the accused, are probative in the context of the anger of the accused and his desire to obtain re-entry into the APS.

51. The statements that Mr Paramore heard the accused make and his observations about the accused's demeanour when making those statements is in my view admissible as being directly relevant to motive, but in my view the evidence of the alleged assault upon Mr Paramore should not be led in evidence. Whilst that evidence is no doubt probative of the level of anger and frustration apparently being experienced by the accused at the time, the probative value is outweighed by the risk that the jury might impermissibly consider that the evidence of such violence is evidence of propensity to violence on the part of the accused.

52. I do not consider that the evidence of Mr Anforth is of high probative value. There will be other evidence before the jury of the AAT proceedings and of the result and I am not satisfied that Mr Anforth's evidence adds a great deal to that evidence.

53. As for the alleged threat to shoot Mr Anforth, I consider that the threat falls into a similar category to the alleged assault upon Mr Paramore. I consider that there is a serious risk that the evidence of Mr Anforth, that the accused held his hand in a 'gunlike' pose and pointed it at Mr Anforth's head and said 'Bang, I'll get you, you bastard', is evidence that may cause unfair prejudice. The similarity between such a threat and the manner in which Mr Winchester was killed is obvious and in my view the risk of the jury drawing unjustified conclusions about that similarity is palpable.

54. The evidence of Ms Vick as given at the first trial is admissible. It demonstrates with clarity the accused's extreme anger and frustration and is highly probative as to motive.

55. Accordingly the orders I propose to make are as follows:

(a) The evidence given by Michael Frodyma upon the first trial is admissible in the forthcoming trial.

(b) The evidence given by Maurice Kennedy upon the first trial is admissible pursuant to s 65(3) of the Act but the note annexed as Annexure 'A' to the s 67 notice relating to Mr Kennedy is not admissible.

(c) The evidence of Phillip Bewley is admissible.

(d) The evidence of Theresa Bewley is admissible with the exception of the evidence that the accused told her that he had assaulted Peter Paramore and an officer of the Office of the Ombudsman.

(e) The evidence of Peter Paramore relating to what the accused told him in relation to the accused's desire to reenter the APS is admissible, but the evidence of an alleged assault upon Mr Paramore by the accused at the office of the PSU in early 1986 is not admissible.

(f) The evidence of Alan Anforth as to the alleged assault upon him by the accused in about 1987, and as to multiple abusive phone calls made to Mr Anforth by the accused, and as to threats made by the accused to Mr Anforth directed at Mr Anforth's family, is not admissible.

(g) The evidence of Helen Vick is admissible.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ.