[2018] ACTSC 194

CRIMINAL LAW - EVIDENCE - Evidence of a decision of the Administrative Appeal Tribunal is not excluded pursuant to s 91 of the Evidence Act 2011 (ACT) if it is not relied on to prove the existence of the fact in issue and the evidence is relevant and probative - pursuant to s 91(2) the evidence admitted for another purpose is not admissible to prove the fact - where the probative value of admissible evidence is outweighed by the risk of unfair prejudice to the accused the evidence must be excluded pursuant to s 137 of the Evidence Act 2011 (ACT)

Evidence Act 1995 (NSW) s 91

Evidence Act 2011 (ACT) ss 60, 91 and 137

Ainsworth v Burden [2005] NSWCA 174

Attorney General of New South Wales v Martin [2015] NSWSC 1372

R v Eastman (No 38) [2018] ACTSC 124

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 have admitted into evidence edited parts of the Administrative Appeals Tribunal ('AAT' or 'Tribunal') decision of 4 November 1986 entitled AK v Commissioner for Superannuation (No A86/39) (the 'AAT decision') which relates to review sought by the accused of a decision made by the Commissioner for Superannuation to place him on an invalidity pension rather than determine that he was fit to perform work in the public service.

2. The defence opposes the admission of any part of the AAT decision upon several grounds, the first being s 91 of the Evidence Act 2011 (ACT) (the 'Act') and, alternatively, on the basis of s 137 of the Act.

3. Section 91 of the Act is as follows:

1. Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.

(2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.

Note Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

4. It is convenient to briefly summarise those parts of the AAT decision that the prosecution seeks to have admitted into evidence. First, the prosecution seeks to have admitted parts of the decision that set out the history of the employment of the accused subsequent to the resignation of the accused on 29 June 1977. That history contains reference to what the Tribunal described as a "large body of evidence". It stated that throughout the nine year period between the resignation of the accused and the determination of the AAT, the accused had been engaged in intermittent periods of employment "all of which have been marked by a constantly recurring inability to relate to other people". The decision then sets out a series of incidents which I summarise below:

(a) Six weeks employment as a parttime research assistant at the Australian National University ('ANU') which ended with the accused being dismissed after complaints following a "violent incident against a female".

(b) Employment in the Queensland Public Service in 1979 and 1980 which ended within four months after "personal clashes" occurred.

(c) In 1981 the accused held four temporary positions with real estate agents which, in each case, led to termination of his employment due to "interpersonal relationships problems".

(d) Employment as a Clerical Assistant Grade 1 in the Department of Defence for three months in 1981 during which "several incidents in the familiar pattern" occurred.

(e) Employment as a temporary Clerk Class 1 for two weeks with the Department of Transport from which the accused resigned in the course of an investigation into his misconduct relating to an act of "physical aggression".

(f) Work as a volunteer tutor in English at the Department of Immigration which was "terminated due to a conflict he had with staff" which conflict was said to involve "violent language and abuse".

(g) Employment as a temporary Clerical Assistant Grade 1 in the Corporate Affairs Commission from which the accused "resigned after eight days".

(h) From 15 April 1985 to 27 June 1985 he was a temporary Clerk Class 4 in the Department of Housing with "quarrels and difficulties with other staff" leading to him being directly supervised by the Senior Executive Officer.

5. The Tribunal noted that 'associated with all of these jobs there has been a continuing thread of violence in deed and language and of aggression'.

6. The Tribunal in its decision then turned to evidence which it had received of incidents which were unrelated to the employment of the accused:

(a) In 1978 and 1979 a "series of arguments with his neighbours leading to confrontation which required the Department of Housing and Construction to move him to other premises".

(b) On 15 June 1983 he occupied the office of the Commissioner for Superannuation and refused to leave peacefully and the police were called to eject him.

(c) On 28 October 1983 he was charged with refusing to leave Havelock House.

(d) In March 1984 an assault of on a fellow student in a tutorial at the Canberra College of Advanced Education led to a Committee recommending his expulsion.

(e) In 1984 various incidents took place at the offices of the Ombudsman. One of those occasions, on 16 July 1984, led to police being called, after the Ombudsman's secretary had her hand crushed by a door knob as she was attempting to bar the accused's progress into the Ombudsman's private office.

(f) On 15 February 1985, security guards were called to the office of a Dr Sanders at the ANU where the accused was protesting against the nonacceptance of his enrolment at the University.

(g) A similar event on 6 March 1985 when the accused occupied the office of the Dean of the Arts Faculty at the ANU.

(h) A further similar event on 7 March 1985 when the accused occupied the ViceChancellor's office and was said to have assaulted a Mr Gill in a lift at the ANU.

(i) An assault upon Mr Paramore the Secretary of the Public Service Union in 1985.

(j) On 17 July 1985 the accused occupied the private office of the Secretary of the Department of Housing, to complain of a grievance, with the police being called to eject him.

(k) An assault on 14 November 1985 upon Mr Hugh Selby, a Deputy Ombudsman, by throwing wine in his face and choking him with his tie.

(l) An incident which took place at the AAT immediately after a directions hearing when the accused assaulted the Deputy Registrar by punching him in the eye.

7. The Tribunal then considered the medical material before it and then concluded that there was no reason to consider that personality traits 'now firmly entrenched at the age of 41 will change in the foreseeable future'. It concluded that:

...although the applicant's health has been partially restored... there are no duties of a kind in the Australian Public Service suitable to be performed by him. In fact it seems to us that because of the disciplined structure of the service, the need to manage and relate to people in the service, the requirement to harmonise with people outside the service - in short the people intensity of the service - the Australian Public Service as a whole is egregiously unsuitable for the applicant.

8. As stated above, the defence contends that the evidence sought to be admitted by the prosecution is not admissible by reason of s 91 of the Act. The prosecution response to that submission is that s 91 is irrelevant. The prosecution argues that it does not seek to prove "the existence of a fact that was in issue in the proceeding". It argues that it does not seek to have the evidence admitted to prove any fact referred to in the AAT proceedings. Rather, it argues that the evidence is admissible to demonstrate that the accused knew of the previous findings of the AAT, and thus he would have known that a conviction for the Russo assault would be a further matter to add to the reason why the accused would not be employed in the Australian Public Service ('APS').

9. Mr Thangaraj, Senior Counsel for the prosecution, submitted that the defence reliance on s 91 of the Act is misconceived. He said:

We're not here to look at whether the AAT decision on the facts of any contested facts was correct and if we called witnesses that's what would be prejudicial. We're not going to call witnesses and create that sort of prejudice, all of which is irrelevant to state of mind. It doesn't matter if the AAT has got every single factual scenario wrong. It's what was relied upon by the Commissioner and what the AAT decided and the impact Mr Eastman believed that would have on his return, because the AAT, at the end of the day, was making a decision about his fitness to return.

10. In Attorney General of New South Wales v Martin [2015] NSWSC 1372 which was a case where application was made to have the defendant declared a vexatious litigant, Simpson J gave consideration to the application of s 91 of the Evidence Act 1995 (NSW) (which is identical to s 91 of the Act). She stated at [13] that:

Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things - (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments - that is, what facts she seeks to prove by their use.

11. In the case before me, the use to which the prosecution seeks to put the AAT decision is to prove that the accused knew of the findings of the AAT that he had been found to be unfit for employment by the APS by reason of his previous conduct and therefore he had every reason to be concerned that a conviction in relation to the Russo assault would finish any aspirations he had to join the APS.

12. In this regard it is relevant to observe that subsequent to the AAT decision of November 1986 and after the accused had made numerous representations to the Superannuation Commissioner and others, Mr Vance as delegate for the Commissioner for Superannuation made a determination on 16 December 1988 that the accused was fit for work subject to two conditions. First, that he be employed in clerical duties to midmanagement administrative services officer, class level 5 to 7, and second, that he was to engage in work which was selfpaced with minimal contact with other people.

13. Mr Thangaraj relies upon a submission made by the prosecution in the course of the first trial, in relation to the determination of Mr Vance of 16 December 1988, when he argued that the possibility of a conviction on the Russo assault charge was:

...so vital to [the accused], because he knew that he had only just squeezed past, and it was perfectly obvious that the condition imposed was imposed because of his previous history and the apprehension of violence and hence the necessity [to] keep him removed from other members of the public service who might suffer a risk, and he knew therefore that this conviction would or could have devastating effects on him.

14. The application of s 91 of the Evidence Act 1995 (NSW) was considered by the NSW Court of Appeal in Ainsworth v Burden [2005] NSWCA 174 which was a defamation case. In the course of the trial the plaintiff, who complained of having been defamed by the defendant, tendered five judgments of a Licensing Court which had found him to be a fit and proper person for the purposes of the grant of a gaming licence and which judgments refuted the allegations of the defendant, the inference being that the defendant was aware of such findings and nevertheless persisted with his allegations against the plaintiff, thus demonstrating malice. The trial judge rejected the admission of the evidence of the five judgments of the Licensing Court. Hunt AJA, with whom Handley JA and McColl JA agreed, stated at [109]:

It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose - as they are in the present case, in order to demonstrate that they would have persuaded any honestminded person that the defendant's allegations were false - they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act.

15. Accordingly, I conclude that s 91 does not prevent the tender of the AAT decision which contains findings as to the existence of facts which are relevant to the present trial, although it does prevent the decision from being tendered for the purpose of proving the existence of those facts. In my view, the AAT decision is admissible for another purpose, in order to demonstrate that the accused was aware of the findings of the AAT, and that it can be inferred that a conviction for another incident of the nature previously considered by the AAT would have significant, if not fatal, effects upon his capacity to be reemployed in the APS. Of course the admission of the AAT decision may not be used to prove the facts contained in it by reason of s 91(2) of the Act, a consequence which would otherwise flow from s 60 of the Act.

16. However, that finding is not the end of the issue as the defence argues further that the AAT decision is irrelevant and unfairly prejudicial.

17. In terms of relevance the submission made by Ms Line on behalf of the accused is first, that the argument advanced by the prosecution that the accused "believed that a conviction on the Russo charge would mean that the Commissioner would return to the position previously and successfully argued before the AAT" is entirely speculative. The defence submits that the AAT decision sheds no light on that prosecution theory.

18. The defence argues that the AAT decision throws no light on the question of what belief the accused might have as to what a different body, the delegate of the Superannuation Commissioner, would do years later about an entirely separate charge that was not dealt with by the AAT. The defence submits that the AAT decision sheds no light on the accused's state of mind subsequent to the determination that had been made that he was fit to return to employment in the APS subject to conditions. It is submitted that in giving consideration to that determination the delegate of the Superannuation Commissioner had taken into account the AAT decision of 1986 as well as different and later psychiatric advice. It is argued therefore that the AAT decision does not advance

"the theory as propounded by the Crown of what Mr Eastman believed the Commissioner might do years later in relation to an entirely different violent event not dealt with by the AAT". In this regard the accused relied on the evidence given in the course of the present trial by Mr Gunther, who was Deputy Commissioner for Superannuation in 1988.

19. Mr Gunther gave evidence that he was aware of the fact that the accused had been charged with an offence in relation to an alleged assault upon a neighbour. Mr Gunther was unsure of when he learnt of this matter, but conceded that he would not dispute the suggestion that he became aware of it prior to 16 December 1988. He stated that it was he who made a further determination in August 1989 that the determination of 16 December 1988 be varied so as to provide that the accused was fit to perform work at a Class 9 level, subject to a condition that the work did not require a "high level of interpersonal skills".

20. The defence further relies upon the fact that the prosecution did not ask Mr Gunther, whilst he was giving evidence, what effect a conviction might have had upon the prospects of the accused in returning to the APS. In response the prosecution argues, and I think correctly so, that the fact that Mr Gunther knew of the charge having been laid at the time of the determination on 16 December 1988, and when Mr Gunther made the further determination in August 1989, is of no significance. Having seen Mr Gunther give evidence in a careful manner, I accept that it would have been surprising if he, as a senior public servant, would have disregarded the presumption of innocence so lightly as to have taken into account against the interests of the accused the fact that the accused had been charged with an offence.

21. The prosecution argues that the evidence of the AAT decision demonstrates that the state of mind of the accused, knowing the background of the findings of the AAT, must have been that he "was already on thin ice because the conditions imposed were so stringent, but a conviction would once and for all end it because of the history". It is submitted that the findings of the AAT are highly probative as to the probable state of mind of the accused after he had been charged with the Russo assault.

22. In my view the way in which the prosecution seeks to use the AAT decision is probative as to the state of mind of the accused and is relevant in that regard irrespective of the fact that there had been a change in the position of the Commissioner for Superannuation on two occasions subsequent to the AAT decision.

23. I turn now to the question of whether the evidence should be admitted after consideration of s 137 of the Act. Mr Thangaraj in his submissions conceded that "what this seems to ultimately boil down to is the 137 issue".

24. Before turning to an analysis of whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, it is necessary to consider a ruling that has been made by me in the past. In R v Eastman (No 38) [2018] ACTSC 124 I gave consideration to the admissibility of evidence proposed to be put before the jury by the prosecution in respect of a number of witnesses. It is clear that the evidence of an assault upon Mr Paramore, which I ruled to be inadmissible, is also evidence that was relied upon by the AAT in its decision. I ruled that evidence as being inadmissible because I considered that the probative value of the evidence was outweighed by the risk that the jury might impermissibly consider that evidence of such violence is evidence of propensity to violence on the part of the accused. Of course at that time the prosecution's contention was that the evidence was direct evidence of the level of anger and the intensity of feeling of the accused about his problems with the APS. Now, as I understand it, the prosecution seeks that the AAT decision which refers to the assault made upon Mr Paramore be admitted into evidence, not as proof of the fact of the assault, but by reason of the relevance of the fact that it was the subject of consideration, along with other incidents, by the AAT and which is relevant to the state of mind of the accused regarding the Russo charge.

25. In addition, as referred to above, the AAT decision refers to twenty-two separate instances of untoward physical behaviour and oral abuse by the accused. They include instances of violence and abuse towards women (the events in June 1979 when he was dismissed from the ANU for incidents arising out of an assault on a female member of staff, his conduct at the Ombudsman's office in 1984 and his behaviour in the office of Dr Sander at ANU on 15 February 1985). Whilst the prosecution propose substantial redaction of the AAT decision (and in particular the psychiatric evidence) the parts of the decision upon which the prosecution relies contain a farrago of statements, some of little detail, relating to misconduct of various types by the accused ranging from assault, to refusing to leave premises, to occupying offices of various people, and to intemperate relations with fellow workers.

26. The defence submits that the combined weight of the evidence of violence and aggression referred to in the AAT decision reaches a point where the danger of unfair prejudice outweighs the combined probative value of the evidence. It is argued that the number and the nature of the incidents, together with the opinion expressed by the Tribunal that the accused would continue to be violent, is likely to inflame the jury against the accused and cause it to overvalue the evidence. In this regard it should be observed that the unredacted version of the AAT decision upon which the prosecution seeks to rely contains the following statement:

The past, as is often the case, is the best guide to the future. Even in flawless conditions the applicant will still need to interact with somebody. He has demonstrated over and over again that he is simply unable to deal with the ordinary tracasseries of life. This inability repeatedly has led, and in our opinion will continue to lead, to suspicion then abrasion then verbal abuse then quarrels then violence. There is no reason to consider that personality traits...now firmly entrenched at the age of 41 will change in the foreseeable future.

27. In response, the prosecution submits that a direction should be given to the jury under s 136 of the Act if the AAT decision is admitted into evidence. By that concession it can be safely concluded that the prosecution accepts that use of the evidence might be unfairly prejudicial to the accused, or at least misleading and confusing. However, the prosecution argues that the prejudicial aspect of the evidence does not exceed the probative value of the evidence. Indeed, Mr Thangaraj argues that the "nature and volume of the assaults" is the probative value in the sense that "it is because of the history that Mr Eastman knew that an assault conviction would end his chances".

28. Furthermore Mr Thangaraj argues that a reasonable jury is not going to think that, just because someone assaults a number of people in a number of different circumstances, that such a person would commit murder. He argues that the matters are so disparate in scale that even without proper direction, a jury could not possibly think that because someone had committed a series of assaults. However, he submits that properly directed no significant prejudice arises. Rather his submission is that, to exclude the evidence would be unfair to the prosecution and would mislead the jury. Indeed, Mr Thangaraj submitted:

Because there are no tendency incidents, without these incidents, there won't actually be any examples of Mr Eastman physically assaulting anyone. And so that is the position that the Crown evidence now is. Yes, there are threats but not incidents. Now, this is not a case of leading evidence of assaults as a matter of general behaviour. These are assaults that go to a specific concern. That is the specific question of APS re-entering [sic]. And Mr Eastman's knowledge and concern about the effect that that would have, and the probative value reflects a number of things: the attitude the Commissioner for Superannuation would take in the event of a conviction; the attitude the AAT would take and therefore the concern that Mr Eastman had in relation to the Russo conviction and, of course, that is a central part of the motive the Crown brings in the case against Mr Eastman in relation to the actual murder.

29. That submission, although demonstrating the importance that the prosecution places on the admission of the evidence, in my view, when addressing "assaults that go to a specific concern", also reveals the risk that the evidence might be misused.

30. As stated above, I consider that the evidence of the AAT decision is relevant and probative in the way argued by the prosecution, that is that the evidence can establish that the accused knew the basis upon which the AAT came to its decision and that by reason thereof he had every reason to have concern that a conviction would render his prospects of reemployment within the APS nugatory. I have for that reason given thought to how the AAT decision might be redacted so as to make that point clear, but without causing undue prejudice to the accused. In this regard I observe that Mr Thangaraj did not oppose the unredacted parts of the AAT decision being compiled in a way that I considered would appropriately address the risk of prejudice. In the end, the language used in the AAT decision is such that I cannot see any way of doing that.

31. In my view the unfair prejudice which could occur by the admission into evidence of the AAT decision is substantial, notwithstanding that I would give as strong a direction as possible that the facts and findings of the AAT as set out in the decision should not be taken into account in any other way than as being relevant to the state of mind of the accused about what the impact on his reentry to the APS was likely to be if he was convicted of the Russo assault.

32. Whilst there might be weight in the prosecution argument that a jury, if properly directed, would not use the evidence in question to reason that the accused might be the type of person to commit a murder, other dangers arise. The first of these is that the evidence the jury will be told to ignore, apart from being of assaults, also might be seen by the jury to reflect a brazen attitude of disregard for others, and a contempt for those in authority. Those matters carry with them a risk of impermissible propensity reasoning. Furthermore, the jury may form the view that the conduct of the accused (particularly the assaults upon women) was so despicable that it may override such directions as I am able to give.

33. I consider there is a real danger that the material contained in the AAT decision is such that any directions I might give to avoid unfair prejudice may have to be so convoluted that there is a risk that the jury may misapply the directions.

34. Accordingly, I conclude that I am constrained by s137 of the Act to refuse to admit the evidence of the AAT decision on the basis that its undoubted probative value is outweighed by the danger of unfair prejudice to the accused.

35. I make the following order, that the evidence of the decision of the Administrative Appeals Tribunal dated 4 November 1986 entitled AK v Commissioner for Superannuation (No A86/39) is inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT).

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.