R v Eastman (No 34) [2018] ACTSC 68 (15 March 2018)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2018] ACTSC 68

The evidence relied on by the prosecution and referred to in its Tendency Notice as incidents numbered 2, 4, 7, 8, 13, 15, 16, 22, 23, 24, 25 and 26 are not admissible as evidence of Tendency 4 as pleaded by the prosecution.

CRIMINAL LAW - EVIDENCE - Admissibility of tendency evidence - Tendency evidence inadmissible unless it has significant probative value pursuant to s 97(1)(b) of the Evidence Act 2011 (ACT) - tendency evidence presented by prosecution is inadmissible unless its probative value substantially outweighs the prejudicial effect it may have on the accused pursuant to s 101(2) of the Evidence Act 2011 (ACT)- factors relevant to assessing probative value - factors relevant in balancing probative value and prejudicial effect - tendency evidence does not relate only to the credibility of the witness and thus not excluded pursuant to s 94(1) of the Evidence Act 2011 (ACT) - tendency evidence inadmissible because either it is not significantly probative or the probative value does not substantially outweigh prejudicial effect - Admissibility of evidence pursuant to s 65(2)(b) and or s 65(2)(c) of the Evidence Act 2011( ACT)

Evidence Act 2011 (ACT) ss 32, 65(2)(b), 94, 97, 101 Part 1 Dictionary meaning of 'credibility of a witness'

Crimes Act 1900 (ACT) s 32

Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206

Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233

Herald and Weekly Times v McGregor [1928] HCA 36; (1928) 41 CLR 254

Hughes v R [2017] HCA 20; 344 ALR 187

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

R v AH (1997) 42 NSWLR 702

R v Beserick (1993) 30 NSWLR 510

R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21

R v Eastman (No 21) [2017] ACTSC 255

R v Eastman (No 23) [2017] ACTSC 281

R v Eastman (No 32) [2018] ACTSC 12

R v Ellis [2003] NSWCCA 319

R v Gregory (No 2) [2009] VSC 509

R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466

R v SK, SK v R [2011] NSWCCA 292

RH v The Queen [2014] NSWCCA 71; 241 A Crim R 1

Thompson v The King [1918] AC 221

Williams v R [2000] FCA 1868; 119 A Crim R 490

Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters,12th ed, 2016)

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. On 21 August 2015 the prosecution filed an Amended Notice of Intention to Adduce Tendency Evidence (the 'Tendency Notice') pursuant to s 97 of the Evidence Act 2011 (ACT) ('the Act'). On 7 September 2017 I ruled (see R v Eastman (No 21) [2017] ACTSC 255) that the fourth of five tendencies sought to be relied upon by the prosecution is admissible. I ruled the remaining four tendencies to be defective.
2. The tendency, as pleaded by the prosecution, that I ruled admissible is a tendency on the part of the accused to 'threaten to shoot or kill people whom he perceives to refuse to accede to his will or demands'. At the time of ruling that such a tendency is admissible, and as agreed between the parties, I gave no consideration as to the admissibility of the evidence of various incidents that the prosecution seeks to rely upon in support of the tendency in question.
3. It is now clear that the prosecution seeks to rely on evidence of the following incidents as set out in the Tendency Notice in support of the tendency pleaded as Tendency 4:
   • incident 2 - threats made by the accused against his ex-partner Ursula Vogtschmidt in January 1985;
   • incident 4 - comments made to Philip and Teresa Bewley in December 1985;
   • incident 7 - threat made by the accused against his mother Marie Eastman on 26 December 1986;
   • incident 8 - threat made by the accused to Alan Anforth in 1986 or 1987;
   • incident 13 - comments made to Irene Finke on 24 December 1987;
   • incident 15 - general threat made by the accused to Helen Vick in early 1988;
   • incident 16 - threat against Colin Winchester made by the accused to Dennis Barbara in November or December 1988;
   • incident 18 - threat against Colin Winchester made by the accused to Dennis Roantree on 6 January 1989;
   • incident 22 - threat against Margaret Reid made by the accused to Sandra Littlewood on 14 August 1990;

Are the Tendency 4 incidents inadmissible as credibility evidence pursuant to s 94?

1. It is convenient to deal first with the issue raised by the defence that the prosecution faces an 'insurmountable problem' in that the tendency incidents relied upon do no more than bolster the evidence of Mr Barbara and therefore are effectively only credibility evidence which cannot be relied upon pursuant to s 94(1) of the Act. It is to be observed that no such argument was raised at the time of the consideration of whether or not Tendency 4 was defective, even though the incidents upon which the prosecution seeks to rely were known at that time. Nevertheless the argument has now arisen and in that regard the admissibility of the evidence must be determined.
2. Part 3.6 of the Act deals with tendency and coincidence evidence. Section 94(1) of the Act provides that:
   1. Application - pt 3.6

(1) This part does not apply to evidence that relates only to the witness's credibility.

1. The 'credibility of a witness' is defined in Part 1 of the Dictionary to the Act as meaning:

(a) of a witness - means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

1. The starting point of the submission made on behalf of the defence is that whilst the amended Tendency Notice does not make explicit which fact in issue the prosecution seeks to prove, my ruling in R v Eastman (No. 21) [2017] ACTSC 255 observed at [82] and [84] that:

.... the prosecution intends to call evidence that the accused made direct threats against Mr Winchester to his general practitioner, Dr Roantree, and to a solicitor, Mr Barbara. The prosecution submits that if the jury accept that the accused had this tendency, it would make it more likely that he did in fact make threats against Mr. Winchester to Mr. Barbara and to Dr. Roantree. If he made those threats shortly before the murder, it is submitted that that may affect the assessment of the probability that he committed the murder.

....

.... The intermediate fact in issue here is that the accused made direct threats to shoot or kill Mr Winchester. Evidence that the accused had a tendency to so threaten those whom he perceived to refuse to accede to his will is relevant to that issue. Thus it is relevant to the ultimate fact in issue in this trial and in my view is capable of being significantly probative.

1. The written submissions filed on behalf of the prosecution on 17 March 2017 dealing with Tendency 4 state at [49]:

The Accused has previously submitted this tendency is irrelevant. If, however, the jury accept that the Accused had this tendency, it would make it more likely that he did in fact make threats against Mr Winchester to Mr Barbara and Dr Roantree. If he made those threats shortly before the murder that may affect the assessment of the probability that he committed the murder.

1. On the basis of both the extract from my ruling dealing with Tendency 4 referred to above and on the basis of the written submissions made on behalf of the prosecution in relation to Tendency 4 it is submitted on behalf of the accused that it is clear that the intermediate fact in issue is whether or not the evidence of Mr Barbara (and Dr Roantree) that Mr Eastman made threats against Mr Winchester is reliable. It is contended on behalf of the accused that 'plainly the tendency incidents are being advanced to bear upon the credibility of' both Mr Barbara (and Dr Roantree)'.
2. Of the thirteen incidents relied upon in support of Tendency 4, the defence submits that seven of them relate only to the credibility of Mr Barbara (and Dr Roantree) and to nothing else. It is argued that those incidents do not relate to a threat to police or to Mr Winchester, nor do they relate to the accused's efforts to be re-employed in the public service or to have the Russo charge dropped. Five of the incidents (22-26) postdate the murder of Mr Winchester. It is contended that the incidents go to no fact in issue, other than their ability to support indirectly the accuracy and reliability of Mr Barbara (and Dr Roantree).
3. In written submissions filed on 24 November 2017 the prosecution rejects the argument advanced by defence that the tendency incidents relied upon are inadmissible by reason of s 94 of the Act. It is submitted (at [24]) that:

An accused telling someone that he or she should, or wants to, commit a particular offence, is not a s 94 issue when that evidence is adduced by the Crown in a trial for the said offence.

.... all of the tendency incidents represent part of the build up of the Accused's anger and frustrations that ultimately focuses on Mr Winchester. They are therefore relevant to the Accused's state of mind and his motive. Further, the fact that the Barbara and Roantree threats were made at all would logically bear upon the probability that Mr Eastman killed Mr Winchester. The jury could properly reason that it would be more likely that Mr Winchester was killed by someone who made threats to kill him than by someone who did not make such threats. Therefore, all the tendency 4 incidents are directly relevant as they assist to prove that the Roantree and Barbara threats were made. This takes them out of s 94.

1. In oral submissions made before me, Mr Lee on behalf of the prosecution submitted that the prosecution position is that the tendency incidents upon which the prosecution relies are being led not only to support the fact that the Barbara (and Roantree) threats were made, and were serious, and thus go to the likelihood of the accused threatening to kill, then killing, Mr Winchester. It is submitted that the tendency incidents demonstrate a building of the accused's anger and frustration over time and a changing of focus which eventually settled on Mr Winchester. This build-up, it is submitted, manifested itself in threats to shoot or kill and was accompanied by a developing interest in, and in the purchase of, firearms. In this manner it is argued that the incidents are relevant to motive and although relevant to the intermediate fact of the Barbara and Roantree threats, go to the likelihood of the accused threatening to kill and then killing Mr Winchester.
2. It is submitted that it is not correct for the defence to assert that the prosecution relies on the tendency evidence merely to prove that the threats were made as asserted by Mr Barbara and Dr Roantree. It is submitted that the submissions made by the prosecution on tendency make that 'abundantly clear'. It is submitted that it would be open to the jury to consider that someone who has made a threat to kill a person is more likely to have killed that person than someone who has not made such a threat.
3. In the written submissions in support of the admissibility of the tendency evidence the prosecution stated as follows:

The tendency evidence sought to be adduced would have a bearing on the assessment of the probability that Mr Eastman purchased the murder weapon and held ill-will towards, and threatened, Mr Winchester. These matters make it more likely that Mr Eastman was the murderer.

An important feature of the Crown case is that the Accused perceived an injustice towards him from the public service and the police. It is the Crown case that he was going to shoot someone, hence the threats and statements to that effect. His anger for that injustice builtup and eventually focussed on Mr Winchester. That evidence also goes to motive and demonstrates that the threats against Mr Winchester were made and were serious.

1. Thus it is submitted by the prosecution that Tendency 4 is relevant to motive as well as to supporting the evidence of Mr Barbara (and Dr Roantree).
2. As is clear, s 97(1) of the Act is, what might be described as, a contingent exclusionary rule. It provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has, is not admissible to prove that a person has a tendency to act in a particular way or to have a particular state of mind, if the court is not satisfied that the evidence, either by itself or in combination with other evidence, does not have significant probative value.
3. Further restrictions apply in this case by reason of s 101(2) of the Act which provides that tendency evidence presented by the prosecution against a defendant cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
4. In my view, and contrary to the submissions of the defence in this regard, it is clear that tendency evidence can be used to support the credibility of other evidence. In IMM v The Queen [2016] HCA 14; 257 CLR 300 French CJ, Kiefel, Bell and Keane JJ stated at [62]:

In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account.

1. As stated in Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters,12th ed, 2016) at 671:

Thus, in focussing carefully on the nature of the fact(s) in issue to which the tendency evidence was relevant, French CJ, Kiefel, Bell and Keane JJ considered that the applicable "fact in issue" was whether the complainant's account of the commission of the offences was both truthful and reliable.

1. The very point of the admission of tendency evidence is that it has the capacity to rationally affect the assessment of the existence of the fact in issue and to a significant degree.
2. In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359] the NSW Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) stated:

Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings.

1. Put in the context of the way in which the prosecution puts its case, that the accused made the threat to Mr Barbara that he would kill Mr Winchester, the evidence of other threats to kill or shoot those who the accused perceived to refuse to accede to his demands, permits the inference to be drawn that it is more likely than not, that the accused acted in the way asserted and had the same state of mind when speaking to Mr Barbara. That is tendency reasoning, not credibility evidence.
2. I reject the submission made on behalf of the accused that the evidence sought to be relied upon in support of Tendency 4 is merely credibility evidence. Whilst the evidence in question may bear upon the probability of an intermediate fact in issue, that is the evidence of Mr Barbara as to the threat directed towards Mr Winchester by the accused, it is not related to the credibility of Mr Barbara. As stated by Simpson J in Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124]:

Underlying s97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.

1. The evidence that the accused had a tendency to make threats to shoot or kill persons who he perceived to refuse to accede to his will or demands bears upon the probability that he had that state of mind at the time of his meeting with Mr Barbara and is relevant to the state of mind of the accused in the period leading up to the death of Mr Winchester. Accordingly I reject the submission made on behalf of the defence that the evidence upon which the prosecution seeks to rely is credibility evidence and thus inadmissible by reason of s 94(1) of the Act.

Consideration of specific Tendency 4 incidents relied on by the prosecution

1. I turn now to the separate issue of the admissibility of the individual incidents upon which the prosecution seeks to rely in support of Tendency 4.

Threats made by the accused against his ex-partner Ursula Vogtschmidt in January 1985 (Incident 2)

1. On 3 March 1989 Ms Vogtschmidt signed a statement which was made in German and has been translated into English. The statement made by Ms Vogtschmidt is to the effect that the accused was in touch with her after she had placed an advertisement in a newspaper seeking penfriends for her children in 1981. She exchanged letters from Germany with the accused for the next two years. She met him first in the European Spring in Stockholm in 1983. He made a very good impression on her and in late 1983 she flew to Australia, met the accused in Sydney and travelled in Australia ending up at the accused's address in Canberra. After a three week holiday she returned to Germany, but later in August 1984 she returned to Australia where she took up residence with the accused. After a short period of time, arguments ensued between them and she was requested by him to leave the house, which she did for several hours, but returned when he insisted that she do so. Ms Vogtschmidt moved out ten days later and returned to Germany some days after that.
2. During the period before Ms Vogtschmidt's return to Germany the accused 'continually badgered' her. In November 1984 the accused went to Germany and 'tracked her down' and went to Ms Vogtschmidt's flat. She made it clear that she wanted nothing to do with him. He left Germany soon thereafter. However, he returned to Germany in January 1985 and she again would not let him in to her flat, with which he lost his temper and kicked-in parts of the glass door. She called police but did not lodge a formal complaint. Some days later Ms Vogtschmidt noticed the accused walking behind her. He called out to her and soon after that she felt a knock on her head which split the skin and required stitches to be inserted at the local hospital. The prosecution contends that the accused hit her on the head with an umbrella.
3. Following this incident Ms Vogtschmidt lodged a formal request for a restraining order at the local court and soon thereafter the accused returned to Australia. However subsequent to his returning to Australia he telephoned Ms Vogtschmidt, her relatives and friends over a period of six months at all hours of the day and night. During these calls the accused threatened Ms Vogtschmidt that he would kill her. He is also alleged to have made telephone calls to relatives and friends of Ms Vogtschmidt stating that he 'will kill Ursula'. As a result of the threats Ms Vogtschmidt moved to a different address and instructed local authorities not to release her address to anyone.

For six months following [the umbrella] incident the accused telephoned Ms Vogtschmidt and her family and friends making threats to kill her.

Defence submissions in relation to Ms Vogtschmidt

1. The defence makes a number of submissions in relation to the evidence sought to be led in respect of Ms Vogtschmidt. The first complaint is that it is unclear from the statement as to whether the threats made to her family and friends that the accused would 'kill Ursula' were within the hearing or otherwise of Ms Vogtschmidt and, if she did not hear such threats, that such evidence is hearsay and that only the threats directly addressed to her can be regarded as possibly admissible. It is contended that no detail is provided in the statement made by Ms Vogtschmidt to assist in the determination of the true position.
2. The defence submits that in addition numerous other issues arise in respect of the evidence of Ms Vogtschmidt. It is argued that the statement that the threats made 'over a period of six months' provides no detail as to how many times such threats were made personally to her, and how many times these threats were made to unnamed family and friends. In this regard it is submitted that Ms Vogtschmidt's statement is vague in a number of respects, including the number of threats made, the content of threats said to have been made to family and friends, and the identity of family and friends in question. It is submitted that the fact that the threats were made in 1985 and the fact that the statement of Ms Vogtschmidt was obtained in 1989 renders the probative value as being low. It is submitted that any threat made to Ms Vogtschmidt is remote in time and that the circumstances of the threat must be looked at in the context of a failed relationship. It is submitted that in that context, where experience shows that sometimes extreme statements are made in anger after a relationship fails, the circumstances are totally different from the circumstances of the Barbara threat.
3. In all these circumstances the defence submits that the evidence of Ms Vogtschmidt lacks significant probative value and, furthermore, that the danger of unfair prejudice that flows to the accused `significantly outweighs' any probative value that the evidence does have.

Prosecution submissions in response in relation to Ms Vogtschmidt

1. In response, the prosecution concedes that the evidence of Ms Vogtschmidt is 'not significantly probative in proof of the accused's guilt of the murder' by reason of its dissimilarity. However it submits that the evidence is of significant probative value in relation to Tendency 4. It is argued that this is so because it demonstrates that the tendency in question had existed for a long time prior to the murder of Mr Winchester. Although the incident arose from a domestic situation, it is argued that the evidence demonstrates the extent to which the accused was prepared to go when a person refused to accede to his will. It is argued that, having gone to Germany once in an endeavour to convince Ms Vogtschmidt to resume their relationship he then returned seeking revenge. It is argued that the incident is a demonstration of the fact that the accused did not always act on impulse, but was prepared to plan, and implement a plan, to seek revenge against a person who refused to accede to his will or demand. The prosecution seeks to rely upon what it argues are admissions made by the accused, in relation to his conduct towards Ms Vogtschmidt, to a number of people, one Jeanie Singer, one Wlodzinierz Staniewski and a Christopher Yates.
2. Jeanie Singer participated in an interview with police on 18 January 1989. She had become acquainted with the accused approximately four years earlier as he shopped at a general store at which she worked. On one occasion he had invited her to have coffee and he took her to his flat in Jerilderie Court. In the course of conversation the accused brought up 'a former girlfriend'. The accused told her that that person had returned to Germany. He told Ms Singer that he was considering selling up all of his furniture and going to Germany. She told police 'I can't remember the exact phrase but words to the effect he was going to kill her'. She said that when he said this he was serious.
3. The defence points out that Ms Singer's account related to matters that occurred four years previously and, furthermore, that she could not recall the exact words said to have been used by the accused.
4. In addition the prosecution contends that the accused made admissions to Christopher Yates about his relationship with Ms Vogtschmidt. Mr Yates was interviewed on 18 February 1991. He was an 'occasional acquaintance' of the accused. Police approached Mr Yates after having found his telephone number in a 1983 diary which had been obtained from the accused, presumably pursuant to a search warrant. Police showed him a number of diaries from 1983, 1984, 1985, 1986, 1987, 1988 and 1989 which contained reference to Mr Yates. Mr Yates said he first met the accused in approximately late 1978 at a self-help organisation called 'GROW' and from time to time thereafter they intermittently visited each other. He told police that the last time he had seen the accused was twelve or eighteen months before his interview with police.

.... who came here to Australia who he seemed to be quite enamoured with, but when she sort of saw his streaks of anger and temper, oh not so much temper, the way he used to sort of seize his anger at people, she went to call, and I believe, that's right she went back to Germany and he went off after her, and hunted her down. And I believe, I remember him saying that he actually hit her with an umbrella.

1. Police asked Mr Yates whether the accused had told him how he 'hunted her down' to which he replied:

I believe he sort of asked around various relations, and she was trying to avoid him, and eventually he tracked her down and then that was the end of that, he was a bit wary of how she would report this, whether she'd report it to the German Police, I suppose, and so he came back to Australia.

1. He was asked by police as to whether the accused had told him why he 'went to that extent' to which Mr Yates answered:

Revenge, he didn't feel that she was doing the right thing by him.

1. In relation to the evidence of Mr Yates, the first observation that might be made is that it does appear quite clear that the accused was talking about Ms Vogtschmidt with him. On the other hand, as pointed out by counsel for the accused, the statement by Mr Yates does not refer to any threats to kill made by the accused towards Ms Vogtschmidt.
2. In addition the prosecution relies upon an interview had between police and a Maria Dreyer on 31 January 1991.
3. Finally the prosecution relies upon a record of a conversation had with Wlodzinierz Staniewski which took place on 23 November 1990. Mr Staniewski had become acquainted with the accused approximately five years before his interview with police and had had a considerable social interaction with him. The following conversation took place between police and Mr Staniewski:

Q70 .... We have already established that Mr EASTMAN had an interest in finding a companion, a woman companion. Do you have any knowledge of any women he had a relationship with?

A Yeah, yeah I do. At least two, ah one was from Germany and I think she was older than him, about a year or two. She came down to visit him in Australia, she stayed with him for a short period, a few days maybe whatever, I think she is simply like me, like everybody, got the idea that there is something wrong with him.

Q71 So she stayed at his flat?

A Yes.

Q72 Right.

A Yes, and he was very angry at that time when he met me he told me that story, that one day he went out side and whatever shopping whatever then he came back, she wasn't there and she left notice, sort of bye, bye and he couldn't find her. And that made him furious so he rang her up presently, two days whatever to her home in West Germany and kept ringing her and abusing her.

Q73 Right.

A Ah then he said you know, I had to stop that because I already received a letter from her brother and he said that letter was rather strong you know he threatened me and I think it's too risky now to ring her and abuse her again on the phone. But he said before it finished, he said to me, he took all his money he had in his bank account and he purchased a ticket to West Germany for two days whatever. He went there, he met her, he slammed her face and then came back to Australia. I said, "David that's regardless it's about $2,000 whatever just for you know, hitting a woman in the face." And he said, "The money [sic] not important, I felt like to do it and I just didn't see any way out, I had to do it, so I just did it".

Q74 Right, so David went to the trouble of buying an airline ticket, going all the way to West Germany to smack this woman in the face?

A That's what he told me, what he did or making a story I don't know, but that's what he told me.

1. It should be observed that in relation to Mr Staniewski's statement, the likelihood is that the woman referred to by the accused in his discussion with Mr Staniewski was Ms Vogtschmidt. However, that said the account given by Mr Staniewski does not include any suggestion of a threat to kill Ms Vogtschmidt having been made by the accused to him.
2. In my view, and as submitted by the defence, the statements of witnesses relied upon by the prosecution are of marginal evidentiary value, and with the exception of Ms Singer, cast no light on the central proposition of the prosecution that the accused made threats to kill Ms Vogtschmidt in circumstances whereby she refused to accede to his demands.
3. It should be observed that the prosecution has filed a s 67 notice dated 23 June 2017 in respect of Ms Vogtschmidt on the basis that 'she may be unavailable as she currently resides overseas'. The notice states that the prosecution continues to make further inquiries. It is apparent that the statement of Ms Vogtschmidt dated 3 March 1989 was not made shortly after the happening of the events referred to in the statement, and that the prosecution must therefore seek to rely on s 65(2)(c) of the Act which on any view, at least on the material currently before me, would present at the minimum some difficultly in demonstrating that the representations contained therein were made in circumstances that make it highly probable that they are reliable. However at this point I am not asked to determine the admissibility of the evidence pursuant to s 65 of the Act. That said, in my view it is clear that the statement upon which the prosecution seeks to rely, having been translated from German to English, contains really only one probative representation, that being that after his return to Australia in January 1985, Mr Eastman:

..... called at all hours during the day or night, threatening me in particular that he would kill me. (He said "I kill you".)

1. As submitted by counsel for the accused the statement is not at all clear as to whether or not the alleged threats made to 'relatives and friends' were heard by Ms Vogtschmidt. As they are said to have been made in telephone calls made at 'all hours of the day and night' the probability is that that assertion is hearsay. Certainly the above quotation establishes that the accused threatened Ms Vogtschmidt directly in the terms 'I kill you'. However no detail is provided as to when and in what context such a threat was made. Furthermore it is unclear what (if any) conduct of Ms Vogtschmidt precipitated the making of the threat to her. The tendency of the accused to threaten to kill or shoot is pleaded as being in response to circumstances where those threatened were perceived by him 'to refuse to accede to his will or demands'. It is unclear as to precisely what demands the accused was making of Ms Vogtschmidt. It might be inferred that prior to making the threats the accused wished to continue to have a relationship with Ms Vogtschmidt and that her refusal to do so was what induced the threats, and in that sense the incident bears some relevance to the pleaded tendency. However, in my view there is force in the submission advanced by the defence that the statement of Ms Vogtschmidt lacks probative value in terms of the pleaded tendency.
2. Ms Vogtschmidt's statement makes it clear that in his first visit to Germany, the accused was not violent, nor was there any assault attempted by him upon her. The statement does not suggest that there was any abusive behaviour at all on that occasion. Ms Vogtschmidt states that upon his departure the accused sent her flowers. However subsequent to the accused's return to Australia, Ms Vogtschmidt responded to his telephone calls 'only to tell him that he still owed me money which I wanted him to repay'. The statement provided by Ms Vogtschmidt to police alleges that subsequent to this the accused returned to Germany in January 1985, visited her at her flat and when she would not let him in abused her and kicked in part of the glass door, with which she called police and he left. It was a few days later that he approached her from behind and hit her on the head, apparently with an umbrella.
3. Subsequently the accused returned to Australia and it was thereafter that abusive telephone calls 'using the most obscene language' commenced. At some indeterminate time during the next six months the accused told Ms Vogtschmidt that he would kill her. It is simply not clear whether that threat was related to the refusal of Ms Vogtschmidt to continue a relationship with him, or whether it was a response to her demand for repayment of money owed to her or, as stated by Mr Yates, that the accused wanted revenge because 'he didn't feel that she was doing the right thing by him'. Whatever be the circumstances, the context of the threat and the state of mind of the accused at that time, is in the context of a failed relationship and thus, in considerably different circumstances from the state of mind on which the prosecution relies in Tendency 4.

Comments made to Philip and Teresa Bewley in December 1985 (Incident 4)

1. The Tendency Notice states that the substance of the evidence upon which the prosecution relies is as follows:

In December 1985 the accused approached Philip Bewley regarding their respective disputes with the Commissioner for Superannuation. During their conversation, the accused became increasingly agitated and eventually said 'I just feel sometimes I could get a gun and kill someone'.'

1. Mr Bewley gave evidence at the first trial. He said that he had joined the Australian Public Service in 1983 and that some time thereafter had become involved in a dispute with the Australian Government Retirement Benefits Office ('AGRBO'). He became involved in proceedings in the Administrative Appeals Tribunal ('AAT') and had sought publicity through the media in relation to the issue that he had. In December 1985 he was interviewed on ABC Radio. That night he received a telephone call from the accused. Mr Bewley did not know the accused prior to that time. In the course of the telephone call the accused told Mr Bewley that he had heard the radio programme and that he too was 'involved in a dispute with AGBRO' and thought that there may be some benefit in meeting with Mr Bewley. Accordingly arrangements were made for the accused to meet with Mr Bewley at Mr Bewley's home within the next 'day or so'. The accused came to Mr Bewley's house and described to Mr Bewley his circumstances. Mr Bewley made a number of suggestions to the accused as to how he might pursue his case, including dealing directly with the Superannuation Office, making a complaint to the Ombudsman, dealing with the union and an application to the AAT. None of these suggestions seemed to 'draw any positive reaction' from the accused.
2. Mr Bewley was asked as to how the conversation ended. He said that the accused got to his feet and said "Well, sometimes I just get so frustrated I could just get a gun and kill someone." Mr Bewley said that his wife was present at the time and that they looked at one another, wrapped the conversation up as quickly as they could and said 'goodnight' and escorted him to the door.
3. The accused, who was unrepresented at the time, chose not to cross-examine Mr Bewley.

1. Mrs Bewley also gave evidence at the first trial. She recalled the circumstances of the accused attending at her home after her husband had been interviewed on ABC Radio in December 1985. She recalled the accused coming to her home in the evening and the discussion about both her husband's and the accused's cases, and the avenues which were open to them to resolve their issues. She said that the first discussion related to dealing with the Commissioner for Superannuation. She recalled the accused saying that he had had "a sit-in there at the Commissioner for Superannuation's office and he had to be asked to remove himself". She recalled a discussion about the Ombudsman's office, and she recalled that the accused had told them that he had got into some 'some slight altercation and thrown some orange juice over an officer from the Ombudsman's office' at a social function.
2. Mrs Bewley said they then discussed dealing with the Public Service Union, but the accused said he had had some dealings with a Mr Paramore 'and on one occasion he'd punched Mr Paramore'. A discussion took place about an appeal to the AAT and she said that the accused said that he did not see much point in that. She said he then:

..... became quite angry about everything and no one would help him and everyone was against him. He then said, you know, "I get so angry sometimes I could go out and get a gun and kill someone."

1. Mrs Bewley said that they then ended the conversation with the accused and her husband agreed to see him again. She said that after what the accused had said she really did not want him coming to her house again.
2. The accused, who was unrepresented at the time, declined to cross-examine Mrs Bewley.

Defence submissions in relation to Mr and Mrs Bewley's evidence

1. On behalf of the accused it is submitted that the temporal remoteness from the murder reduces the probative value of the evidence of both Mr and Mrs Bewley. It is submitted that being three years before the murder, and unrelated to the police or Mr Winchester, the evidence of the threat is not probative. The defence relies upon an inconsistency between the statement made by Mr Bewley and Mrs Bewley to police on 30 August 1989 which it is submitted 'suggests the probative value of the evidence is not substantial'. On 30 August 1989 Mr and Mrs Bewley both provided statements to police in relation to their meeting with the accused in December 1985. In the course of his statement Mr Bewley said:

At no stage during my conversations did Mr EASTMAN mention any dislike for the Police, his dislike was directed at individuals by that I mean directly at Mr DAVEY from the Commissioner for Superannuation, and not the office itself, and there were other people from Treasury and Peter PARAMORE.

1. On the other hand Mrs Bewley in her statement said:

During that conversation Mr EASTMAN stated that he had been involved in a 'sit-in' at the office of the Commissioner of Superannuation at Belconnen. Mr EASTMAN spoke angrily about the Police who removed him from the building on that occasion.

1. It is contended on behalf of the accused that the delay in making statements, the lack of recollection of Mr Bewley about aspects of the conversation, and the inconsistencies mean that there is a substantial prospect that unfair prejudice would flow should evidence of the incident be admitted and that a jury might give greater weight to the comment in question than should be the case. It is submitted on that basis that ss 97 and 101 of the Act are not satisfied, or that if they are then the evidence should otherwise be excluded pursuant to s 138 of the Act.

Prosecution submissions in relation to Mr and Mrs Bewley's evidence

1. The prosecution submits that the evidence of Mr and Mrs Bewley is relevant to motive as it shows the extent of the frustration of the accused with the Public Service at his perceived unjust treatment and that the threat has significant probative value as not only does it demonstrate that the accused had a tendency to threaten to shoot someone who he perceived to refuse to accede to his will, but from at least December 1985 it shows that the threat is based upon his frustration with others. In so far as the inconsistency between the statements of Mr Bewley and Mrs Bewley as to the attitude of the accused towards the police, the prosecution submits that the inconsistency is insignificant when it is considered that the general tenor of the evidence is consistent as are the details of the threat.

Conclusion in relation to the evidence of Mr and Mrs Bewley

1. In my view it is clear that the evidence of Mr and Mrs Bewley is relevant to the manner in which the prosecution puts its case both as to motive and as to the evidentiary basis of the build-up of frustration in the mind of the accused over the years leading to the murder of Mr Winchester. However in my view the evidence of both Mr and Mrs Bewley is not evidence of the tendency pleaded. First, the statement said to have been made by the accused is not a threat. It is a statement of the state of frustration of the accused. Secondly, the statement is not directed at a particular person, nor does it appear clearly that the statement made is directed at any person who in the perception of the accused had resisted his will.
2. In such circumstances, whatever the basis of admissibility of the evidence for other purposes, I conclude that the evidence is inadmissible as proof of Tendency 4.

Threat made by the accused against his mother, Marie Eastman, on 26 December 1986 (Incident 7)

1. The mother of the accused, Mr Eastman, is deceased. The prosecution has filed an Amended Notice of Intention to adduce evidence of previous representations made by her and intends to rely upon s 65(2)(b) or (c) of the Act in arguing that the hearsay rule does not apply to the evidence. The notice establishes that the substance of the evidence that the prosecution intends to present is that on 26 December 1986 the accused attempted to force open the front door of his mother's unit. That occurred in circumstances whereby the accused had telephoned his mother and father on many previous occasions and been abusive. It is asserted that on the evening of 26 December 1986 the accused telephoned her home and said to his mother, 'I will murder you'. The representations are said to have been made in a complaint to police on 26 December 1986 and in a Court Information made on oath before a Justice of the Peace on 31 December 1986.

Prosecution's submissions in relation to the evidence of Marie Eastman

1. The prosecution submits that two documents are admissible as representations being made by Mrs Eastman, the first being a document signed by a Senior Constable Bennett which records that police attended at the home of Mrs Eastman at 11 am on the same day and received a complaint from both Mr and Mrs Eastman 'that a person they believed was their son' had tried to force the front door of their unit. The second document is a complaint signed by Mrs Eastman on 31 December 1986 stating that the accused had attempted to break down the door of her premises on 26 December 1986 and later on in the same day had stated 'I'll murder you' to Mrs Eastman in a telephone conversation. The document was sworn by Mrs Eastman before a Justice of the Peace. The prosecution relies in particular upon the second document which confirms part of what was said to be stated by Mrs Eastman in the first document which was created on the day of the incident. Further reliance is had on the circumstance of the making of the statement before the Justice of the Peace shortly after the incident in question. It is submitted in those circumstances that the representations were made shortly after the events occurred and in circumstances that make it unlikely that they are fabrications, or alternatively that the representations have been made in circumstances that make it highly probable that they are reliable.

Defence's submissions in relation to the evidence of Marie Eastman

1. In response Mr Stanton on behalf of the accused points to the fact that the first document upon which the prosecution relies is not signed by Mrs Eastman, but rather by Senior Constable Bennett. The statement is unclear as to who is making the representation that 'a person they believed was their son' had tried to force the door of their unit. It is submitted that there is no information about the actual surrounding circumstances, no signed statement and no evidence from Senior Constable Bennett as to the conversation had with the parents of the accused. Mr Stanton submits that this raises the spectre of whether in reality it is hearsay upon hearsay. On this basis it is submitted that the representation contained in the police report of 26 December 1986 does not meet the threshold of s 65(2)(b) of the Act.
2. As to the second representation contained in the Statutory Declaration of Mrs Eastman forming the complaint of 31 December 1986, Mr Stanton argues that there is insufficient temporal connection between the events of 26 December 1986 and the Court Information made on oath five days later so as to make it admissible under s 65(2)(b) of the Act. He submits further that there is a paucity of information about the surrounding circumstances in which the representations were made. Mr Stanton submits further that there is no explanation for why the threat to murder was not referred to in the police report of 26 December 1986. In fact there is an explanation for that in that the police report makes it clear that the police attended at 11 am and the Court Information document sworn by Mrs Eastman states that 'later on the same day' the accused telephoned her and made the threat in question.

Conclusion in relation to the evidence of Marie Eastman

1. In my view the police report of 26 December 1986 is not admissible pursuant to s 65(2)(b) of the Act. First, it is unclear whether Mr or Mrs Eastman made the complaint about the attempted break in by the person they thought was their son. Secondly, the probative value of Mrs Eastman's statement is very low in circumstances whereby there was no positive identification of the accused.
2. Turning to the Court Information document, I agree that it does not meet the temporal requirements of Williams v R [2000] FCA 1868; 119 A Crim R 490 so as to comply with s 65(2)(b) of the Act. Accordingly the question to be considered is whether the representation was made in circumstances that make it highly probable that the representation is reliable. The first issue that arises is that taking into account that Mr, and or Mrs, Eastman apparently informed Senior Constable Bennett on 26 December 1986 that they thought it was the accused who tried to break down their door, from which one might infer they made no positive identification, the Court Information document makes a positive assertion of that fact.
3. I do not consider that the prosecution has demonstrated that the evidence of these representations satisfies the onerous threshold imposed by s 65(2)(c) of the Act that it is highly probable that the representations are reliable. In those circumstances I conclude that the evidence of these representations is inadmissible.
4. I might add that even had I reached the conclusion that the Court Information document of 31 December 1986 was admissible, on the face of it, I would not have concluded that it was admissible as proof of a tendency incident. As stated above the tendency pleaded is that the accused had a tendency to threaten to kill or shoot persons who had, in his perception, resisted his will. It is quite unclear as to what circumstances led the accused to make the threat to murder his mother and whether that threat arose by reason of a refusal on her part to accede to his will, or whether the threat was made just in the general circumstances of the unhappiness of the relationship between the accused and his mother and his father. In order to be admissible the evidence of the incident needs to comply strictly with the tendency as pleaded by the prosecution.

Threat made by the accused to Alan Anforth in 1986 or1987 (Incident 8)

1. The Tendency Notice states that the substance of the evidence upon which the prosecution relies is as follows:

The accused had a chance encounter with Alan Anforth who had acted against him in proceedings in the Administrative Appeal Tribunal. The accused approached Mr Anforth, aimed his fingers at Mr Anforth's head in the shape of a gun and said 'bang, I'll get you, you bastard.'

1. Mr Anforth did not give evidence at the first trial. However he has provided a number of statements to police. The first conversation had between Mr Anforth and police was with Detective Sergeant Lawler on 18 September 1991. That conversation was taperecorded and subsequently typed but apparently never signed by Mr Anforth. Mr Anforth, who is a solicitor, told police that he first encountered the accused in 1984 when he was working for the Commissioner for Superannuation in Canberra. It was one of his functions to conduct litigation on behalf of the Commissioner. He said that the accused had made application to the Commissioner to be reinstated to the Public Service, but his application was rejected and the accused appealed that decision to the AAT. Mr Anforth stated that prior to the hearing in the AAT, he had 'a fair [amount of] contact' with the accused:

in the context of him attempting to persuade me not to continue with the case but rather to concede to the case er, so that he would be reinstated to the Public Service.

1. Mr Anforth said that 'of course' he did not accede to this and most of his conversations with the accused 'were of a fairly angry nature'. In the course of the hearing of the AAT application Mr Anforth appeared for the Commissioner for Superannuation. He called a number of witnesses to give evidence of their past dealings with the accused in the public sector. In the end result the AAT determined that the accused was not fit to return to the Public Service. At the conclusion of the hearing the accused made a number of angry and threatening comments to Mr Anforth the details of which Mr Anforth was unable to recall at the time of making his statement. Sometime, and perhaps a year, after the conclusion of the AAT case Mr Anforth left the employment of the Commissioner for Superannuation and took up employment with a firm of Canberra solicitors. One day, sometime after that, Mr Anforth was sitting in a restaurant in Bunda Street, Canberra with another person when the accused came up to him. He said Mr Eastman:

... made some comment to me about me acting in a dishonourable way and leading false, or misleading information to the Tribunal in his case. He was obviously agitated. I told him I, words to the effect I had nothing to say to him. He then produced, he then produced his fingers to my head in the form of a gun with his thumb cocked to indicate it, the firing mechanism in [sic] his fingers to indicate the barrel and went 'Bang, I'll get you, you bastard'.

1. Mr Anforth said that the accused's fingers did not touch his head.
2. The second statement made by Mr Anforth is a typed record of a taperecorded interview had between Mr Anforth and Detective Constable Storen on 15 July 1993. At this time Mr Anforth held the office of Director of the ACT Council of Social Services. The statement refers to dealings had between Mr Anforth and the accused at that office but otherwise bears no relevance to the issues presently under consideration by me.
3. The third statement is a signed statement made by Mr Anforth on Monday 18 July 1993 which likewise bears no relevance to the issues before me.
4. In addition to the above documents there is a statement which is unsigned and undated otherwise than that it appears to have been taken in 1994. In essence the statement deals with the threat made in the restaurant in Bunda Street and is in essentially the same terms as the taperecorded interview with Detective Sergeant Lawler on 18 September 1991. As stated below, the defence argues that the fact that the statement is unsigned is of significance in terms of reducing its probative value.

Defence's submission in relation to the evidence of Alan Anforth

1. The defence submits that it is unclear from the documents relied upon by the prosecution as to how the unsigned Anforth statement came to be drafted, which AFP officer interviewed Mr Anforth (if this in fact occurred), who drafted the statement and whether the drafted statement reflects accurately what Mr Anforth said. Furthermore the defence argues that it is unknown as to whether Mr Anforth ever read the draft statement and found it to be true and correct, and that in the absence of a signed, dated statement, it cannot be assumed that the statement relied upon by the prosecution records the evidence Mr Anforth could give. It is submitted on behalf of the accused that the significant effluxion of time since the incident, means that it cannot be assumed that Mr Anforth has a current memory of this event which could be refreshed by the unsigned statement. Reliance is had on the fact that the incident, the subject of his statement, occurred thirty or thirty-one years ago. Mr Anforth has never given evidence of this incident in this proceeding and it is argued that the unsigned, undated statement drafted apparently four to five years after the incident, together with the DPP memo dated 27 September 1994 in which the incident is scarcely mentioned, does not constitute sufficient documentation for the court to conclude that the incident has significant probative value.
2. It is submitted on behalf of the accused that the evidence of Mr Anforth is incapable of supporting Tendency 4. It is argued that the documentation upon which the prosecution relies demonstrates that the threat made by the accused to Mr Anforth was in response to the accused's belief that Mr Anforth had acted dishonourably and that the accused was upset with the manner in which Mr Anforth had conducted himself in appearing against the accused in the AAT application. It is submitted that this circumstance is not such that it meets the tendency pleaded by the prosecution.
3. Furthermore, it is submitted on behalf of the defence that in any event, in all of the circumstances, the threat made to Mr Anforth cannot be assumed to be a serious threat. In this regard reliance is had by the defence on Mr Anforth's statement that the accused approached him in public, during the day. It is submitted that Mr Anforth's response of not paying any further attention to the accused and his statement that, although he felt apprehensive, the conduct of the accused did not leave him in a 'state of .... great fear' is reflective of the lack of serious intent on the part of the accused. It is submitted that the evidence of Mr Anforth does no more than establish that the threat was made in the heat of the moment, to emphasise the accused's criticism of Mr Anforth's conduct at the AAT where the accused had become 'highly agitated and embarrassed by what was being said' about him.

Prosecution submissions in relation to the evidence of Alan Anforth

1. In answer to the complaint advanced on behalf of the defence that the statement apparently prepared in 1994 is unsworn and undated, the prosecution concedes that it cannot rely upon that statement, although it observes that that statement is consistent with the record of conversation of 18 September 1991 and appears to be based upon it. The prosecution submits that it will rely upon the record of conversation from which, it submits, Mr Anforth will if necessary be able to refresh his memory.
   1. The prosecution argues that the incident that is the subject of the evidence of Mr Anforth set out in the record of conversation dated 18 September 1991, has significant probative value for a number of reasons. First, it argues that it is the 'second mention of a gun' by the accused and it is 'the first time' the accused threatens to shoot someone in the head, and that this illustrates that the tendency in question 'is progressing from a threat to kill, to a threat with a gun, to shooting in the head'. It is submitted that the evidence falls squarely within the tendency as 'Mr Anforth did not accede to Mr Eastman's will or demands and Mr Eastman subsequently threatened to shoot him'.
   2. In this regard the prosecution relies upon what Mr Anforth told Detective Sergeant Lawler in the course of the conversation had on 18 September 1991. In answer to question 9 which requested information from Mr Anforth as to the 'background' of his association with the accused, Mr Anforth provided a lengthy and detailed response. The passage that appears therein, and upon which the prosecution places reliance, is referred to in [82] above. That is, Mr Anforth told police that the accused attempted to persuade Mr Anforth not to proceed with the defence of the case, but in effect to accede to the claim brought by the accused so that he could be reinstated in the Public Service. The prosecution relies upon that passage to argue that the failure by Mr Anforth to accede to the demands of the accused is directly related to the subsequent threat made towards Mr Anforth by the accused and thus is highly probative as evidence of the pleaded tendency.

Conclusion in relation to the evidence of Alan Anforth

1. In my view there is nothing of substance in the complaint made that Mr Anforth did not sign the typed record of his conversation with police on 18 September 1991. He agreed to answer questions which became the subject of the taperecorded discussion of 18 September 1991 which has been converted into a transcript. At the conclusion of that interview Mr Anforth agreed that his answers were true and correct and that no threat, promise or inducement had been held out to him to give the answers recorded on the tape. If he is called to give evidence, and he has no memory of the matters in issue, no doubt he will be asked if he recalls having provided the information on the taperecording and if he does so an application may well be made for him to use the transcript of the record of interview (subject to it being proved to be such) to revive his memory in accordance with s 32 of the Act. At this stage I shall not say any more about the applicability of s 32 of the Act to the circumstances as it is speculative as to whether or not an application will be made. Mr Anforth may well have an independent memory of the circumstances in issue.
2. Accordingly, contrary to the submission made on behalf of the accused, I consider that the record of conversation dated 18 September 1991 does provide sufficient documentation to enable the consideration of whether or not the evidence has significant probative value in terms of proof of Tendency 4.
3. However the issue raised by the defence as to whether or not the conduct alleged by Mr Anforth is of significant probative value in support of the tendency requires consideration. In effect, in submitting that the evidence is capable of supporting the tendency pleaded, what is relied upon by the prosecution is an extract of two sentences from a long statement made by Mr Anforth to police in the course of the conversation of 18 September 1991. However when those two sentences are put into context with other things said by Mr Anforth, they are far from compelling.
4. Mr Anforth said that prior to the conduct of the AAT proceedings he spent 'as much as one month almost exclusively' researching the background of the accused. He said he interviewed many people and put together a 'volume of evidence' which he subsequently put to relevant psychiatrists for a medico-legal opinion as to whether the accused's behaviour patterns indicated the accused was fit to return to the Public Service. Mr Anforth said that the material he collected 'indicated that [the accused] was a violent man, he particularly detested having women in a position of .... authority over him and he was still very much of a paranoid nature'. Mr Anforth said that when the AAT matter proceeded to hearing the accused had obtained legal aid and had a barrister appearing for him. Mr Anforth said that he had 'in number about thirty' witnesses to give evidence as to their dealings with the accused. He said that as the evidence was led by him it became apparent that the accused became 'highly agitated and embarrassed by what was being said'. Mr Anforth stated that after the accused had dismissed and then reinstated his barrister, the barrister agreed with Mr Anforth that there was no necessity for Mr Anforth to call the rest of the witnesses and the psychiatric evidence was admitted on the basis that the factual validity of the evidence upon which the specialist opinion was based was conceded by counsel for the accused.

Comments made to Irene Finke on 24 December 1987 (Incident 13)

1. The Tendency Notice states that the substance of the evidence in relation to Irene Finke is as follows:

On 24 December 1987, the accused wrote to his penfriend, Irene Finke, in Germany, stating:

... I want to kill the neighbour, his friends and the bastard police as well.... I sympathise with men who kill hundreds, thousands, millions.

1. I have dealt already with the evidence of the 'Finke letters' in R v Eastman (No 23) [2017] ACTSC 281. Of particular relevance to the issue now before me I ruled that the words 'I want to kill the neighbour, his friends, and the bastard police' referred to above were admissible. However, I ruled that the following words 'I sympathise with men who kill hundreds, thousands, millions' should be redacted under s 137 of the Act. Accordingly, the issue for consideration now is whether the words which I have ruled as being generally admissible are also admissible as proof of Tendency 4.
2. In the light of that ruling the defence accepts that the threat to kill police and others in the third letter of 24 December 1987, will be adduced as direct evidence of motive. Nevertheless, it is submitted that this threat should not be admitted separately as a tendency incident, because it does not have significant probative value as required by s 97 of the Act. It is submitted that this is so because this threat was not limited to police, but included Russo and his friends. It is argued that read in context, the threat referred to police involved in the Russo matter and not Mr Winchester. It is submitted that at that time the accused had no reason to feel animosity towards Mr Winchester.
3. Whilst it is clear that the threat in question is admissible in relation to motive and to the way in which the prosecution puts its case, and to the build-up of anger and frustration in the accused, I have difficulty in seeing how this threat is relevant to the pleaded tendency. The threat appears to me, at least in relation to Mr Russo and his friends, to be a reflection of the anger and frustration of the accused about the perceived injustice of his being charged with the assault of Mr Russo, rather than a response to persons who would not accede to his will as pleaded in Tendency 4.
4. Accordingly I conclude that the evidence in question does not have significant probative value as proof of the tendency pleaded by the prosecution.

General threat made by the accused to Helen Vick in early 1988 (Incident 15)

1. The Tendency Notice states that the substance of the evidence of Helen Vick upon which the prosecution seeks to rely is as follows:

Helen Vick was an employee of Senator Janine Haines, the leader of the Australian Democrats. She received a telephone call from the accused regarding his attempt to return to the public service in which he said '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'.

1. During 1988 Ms Vick worked as the Senior Legal Adviser to then Senator Janine Haines. On 16 January 1989 Ms Vick took part in a taped interview with Detective Constable Overland and she gave evidence at the inquest on 30 August 1989. Subsequently Ms Vick made a statement to police on 11 August 1993. That statement provides that during September of 1987 she began to have contact with the accused in her capacity as a senior adviser to Senator Haines. Together with another staff member she met with the accused and he outlined a number of complaints that he had about the way he had been 'invalided out of the Public Service approximately ten years earlier'. The accused was seeking the assistance of Senator Haines in making representations to some federal government ministers in relation to issues of obtaining a 'Temporary Work Trial' and compensation for what had happened to him. Ms Vick observed that he:

....obviously felt that there had been a massive injustice against him, particularly as he had been trying for quite some years to remedy the situation in the way he wanted it remedied.

1. Ms Vick reported the matter to Senator Haines who did make representations to a variety of government ministers on behalf of the accused, but to no avail.
2. Ms Vick stated that in the first half of 1988, on a date that she was unable to recall (but which by reason of other evidence was in all likelihood 7 March 1988), in the course of a telephone conversation she had with the accused, he became very upset and angry. Ms Vick states 'he was not specifically angry with me, more with the ministers who had not responded in the way he wanted them to'. In the course of the conversation he said words to the effect of:

.... 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.

1. Ms Vick said that 'He mentioned no names and went so far as to say that it was not directed at me or at Senator Haines or at the Senator's Office'. She said that she enquired of the accused 'if I should take him seriously' to which he replied 'Yes'. She told him that on that basis she intended to telephone the AFP, which she did. The next day she again spoke to the accused who told her that he had been questioned by police about the telephone call the day before. She stated that he expressed no hostility towards her in the course of this conversation. She stated further that in due course, in another conversation, she conveyed to him Senator Haines' view that Senator Haines did not feel that she could do anything else to help him.
2. Subsequently, on 10 July 1995, Ms Vick gave evidence at the first trial. Her evidenceinchief was consistent with what she had said in the statement referred to above. She was cross-examined by Mr Terracini, then counsel for the accused. She confirmed that she never felt that the threat in question had been directed at her or at Senator Haines. She confirmed that the accused had sent a Christmas card to Senator Haines' office and she agreed that that had happened after the accused was 'obviously disappointed with the result' of the efforts made on his behalf by Senator Haines.
3. The following exchange took place between the prosecutor and Ms Vick:

And I gather from what you've just said to my learned friend, that in fact he told you that the threat was not directed at you or Senator Haines?---Yes, well that was - I made that statement back in - at the inquest and I've reiterated it several times today, I never ever considered that to be case [sic] and he said that quite specifically.

But you did ask him whether you should take the threat seriously?---Yes, yes.

And he said yes?---Not as being directed at me or anyone in that office but that it was a serious threat, yes.

And he - what did he say to you when you asked him?---He said yes, or well, that was the affect of what he said. Again, I wouldn't want to lay claim to a precise memory to the word but the essence of it was that I should.

And it's then that you informed him that you would have to tell the police and he said - - -?---I told him I intended to advise the police of the threat, yes.

And he said, go ahead for something, whatever that was?---Again, yes.

He didn't ask you not to at all?---No, he didn't.

Defence submissions in relation to the evidence of Ms Vick

1. The defence submits that the probative value of this evidence is low as it is likely that the accused was making the threat rhetorically, or in an attempt to manipulate Ms Vick into assisting him to a greater degree. It is argued that this is consistent with the accused's making a general threat to kill 'somebody' rather than nominating a specific person and that it should not be adduced in evidence as a tendency incident as it does not satisfy the s 97 of the Act requirement of significant probative value.
2. The defence submits that in assessing the lack of seriousness of the threat it is relevant to observe that notwithstanding that the threat was made in early 1988, the accused continued to have dealings with Ms Vick 'well into 1988' and that his anger was directed at the ministers who had not responded to his requests, as distinct from being directed towards police and then Mr Winchester as contended by the prosecution.
3. Furthermore the defence submits that the probative value of the evidence does not substantially outweigh the prejudicial effect of the evidence as required by s 101 of the Act, or in the alternative that the evidence should be excluded under s 137 of the Act.

Prosecution submissions in relation to the evidence of Ms Vick

1. In response the prosecution submits that the evidence of the threat has significant probative value as it demonstrates the tendency of the accused to threaten to shoot or kill people who he perceived as refusing to accede to his will or demands at a time when his anger and frustration was building. It is contended that this incident is a clear indication that the accused was associating what he perceived as injustice with a threat to kill.
2. It is apparent that the evidence of Ms Vick who, as I have said, was a witness at the first trial is again to be relied upon by the prosecution as being relevant to motive irrespective of whether or not the evidence is ruled to be admissible under s 97 of the Act.
3. The question now under consideration is whether the evidence has significant probative value as evidence of proof of the existence of Tendency 4 as pleaded by the prosecution. In consideration of that matter, it should be observed that the statement made by the accused to Ms Vick was not a threat to kill any nominated person. In this regard the statement differs substantially from the threat to the Ombudsman and to Mr Winchester that the accused allegedly had made to Mr Barbara. As is apparent, Ms Vick did not regard the threat as being directed at either herself or Senator Haines. The statement was not an unequivocal threat to kill somebody at all. The statement was made on the basis that 'if this situation was not worked out perhaps' the accused would have to kill somebody.
4. There can be little doubt that evidence of the statement made to Ms Vick reveals the extreme anger and frustration that the accused felt at the 'massive injustice' perceived by him to have been done to him. As likely as not the accused intended that making the statement would in some way manipulate Ms Vick to do something to assist him in the resolution of his circumstances vis a vis the public service, but can it be said that the statement was 'a threat to shoot or kill people whom he perceived to refuse to accede to his will or demands' as pleaded by the prosecution?
5. In my view it is difficult to see how the statement made to Ms Vick can be considered as a piece of evidence that is proof of Tendency 4 as pleaded. Even if I accept that the statement was a threat rather than a statement made by the accused to emphasise his extreme anger and frustration and his desire to manipulate Ms Vick, the threat was not addressed towards any person who it is clear was perceived by the accused to have refused to accede to his demands. Indeed the threat, if it was one, was addressed to 'somebody' who may, for all intents and purposes of the accused, be a random member of the public. There is simply no evidence that the threat was directed at any particular person.

Threat against Colin Winchester made by the accused to Dennis Barbara in November or December 1988 (Incident 16)

1. The Tendency Notice states that the substance of the evidence of Dennis Barbara upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

The accused attended the office of his solicitor, Dennis Barbara, in relation to the Russo assault charge .... During their meeting, the accused became angry and stated 'I will kill Winchester and then I'll get the Ombudsman too.'

1. At this time, in the light if my ruling in R v Eastman (No 32) [2018] ACTSC 12 I do not consider that it is necessary to deal with the evidence of Mr Barbara, other than to observe that the threat referred to by Mr Barbara fits clearly within the tendency pleaded and that the prosecution relies upon the other evidence which it submits supports Tendency 4 as being relevant to the intermediate fact in issue that the accused made a threat to kill Mr Winchester before he was murdered.

1. These incidents all post-date the murder of Mr Winchester. In summary, the defence submits that for a variety of reasons, the probative value of the evidence is low, that it is unfair in the circumstances that the prosecution relies on such evidence and that the prejudicial effect of such evidence substantially outweighs any probative value. I shall return to the further consideration of these issues after I have analysed the incidents upon which the prosecution relies.

Threat against Margaret Reid made by the accused to Sandra Littlewood on 14 August 1990 (Incident 22)

1. The Tendency Notice states that the substance of the evidence of Sandra Littlewood upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

Sandra Littlewood was employed at Senator Margaret Reid's electorate office. She received a telephone call from the accused wishing to speak with Senator Reid about police harassment. When Ms Littlewood asked who was calling, the accused responded 'it's David Eastman. I want to give a message to Senator Reid - if she doesn't have the police harassment stopped I will shoot her'.'

1. Ms Sandra Littlewood made a statement to police on 14 August 1990 in relation to matters that had occurred the day before, on 13 August 1990. At the time she was employed by Senator Reid in her electorate office in Canberra city. The accused had left a message on the office answering machine. Ms Littlewood returned his call. She knew his voice from numerous conversations over the previous fifteen years when he had phoned 'different politicians for whom [she had] worked'. The accused told Ms Littlewood that he had rung Senator Reid over the weekend complaining about police harassment and wanted the Senator to see Senator Tate, who was then the Minister for Justice. In response to Ms Littlewood asking the accused how she could help him, Ms Littlewood said that the following conversation took place. The accused said:

The Police harassment has started again

I said: I'm sorry, what Police harassment are you talking about?

He said: How much Police harassment is there, how many people are being harassed?

I said: To whom am I speaking sir?

He said: It's David EASTMAN. I want to give a message to Senator REID - if she doesn't have the Police harassment stopped I will shoot her.

He then hung the phone up.

1. Ms Littlewood said that she had no doubt that the caller was the accused, due to her past dealings with him and that when he spoke on this occasion, it was in a precise and deliberate tone and when he said that he would shoot Senator Reid it was in a 'deliberate and cold sounding voice'. After the accused hung up Ms Littlewood immediately telephoned police and reported the matter. She made her statement to police the following day. Ms Littlewood did not give evidence at the first trial of the accused
2. The first issue in relation to the proposed evidence of Ms Littlewood is that the statement said to have been provided to police by her is unsigned. It is submitted by the defence that in such circumstances I cannot be satisfied that what is alleged to have been said by her has significant probative value. Ms Line, who made oral submissions on behalf of the accused in relation to this matter, argues that in circumstances where the evidence consists of an unsigned statement by a witness who has never given evidence in these proceedings, the accused would be unfairly prejudiced by not having had an opportunity to test the evidence of the witness at any time nearer to the time of the events in question.
3. In response, and on behalf of the prosecution, Ms Campbell stated (from the bar table) that although the statement bearing the date 14 August 1990 and said to be the statement of Ms Littlewood does not bear her actual signature, the statement is contained in a police field book. Ms Campbell referred to a previous statement (likewise from the bar table) made by Senior Counsel for the prosecution to the effect that in 1990, one practice of police was to hand write the statement of witnesses in a field book, have the witness sign the field book, and then have the statement typed up and signed by the police officer concerned. Ms Campbell stated that if evidence of the incident in question is ruled to be admissible then:

....hopefully [the police field book] is available. We have had success obtaining them in the past [so] there's no reason to believe otherwise.

1. In my view, as unsatisfactory as it is that the typed statement upon which the prosecution relies does not appear to have been signed by Ms Littlewood, it is not appropriate to rule the evidence as inadmissible on that basis alone at this stage. It may well be that in due course that issue may have to be resolved in terms of the admissibility of her evidence, but that appears to me to an issue for the future and not an issue relevant to the present consideration of the admissibility of the evidence as tendency
2. On the face of it this threat appears to fall within the tendency pleaded. It is a direct threat to shoot a nominated person and appears clearly to be made by the accused in circumstances whereby he perceived that Senator Reid was not acceding to his demands to do something about police harassment.

Defence submissions in relation to alleged threat directed at Senator Reid

1. As stated above the defence submits that it is unfair to use against the accused at retrial threats that he is said to have made in circumstances whereby he was subjected to unlawful harassment and in circumstances whereby he was attempting to have the harassment stopped. It is submitted that it is clear that the threat directed at Senator Reid that was made to Ms Littlewood was related to the harassment in question. The evidence is clear that this incident, together with the following incidents numbered 23 and 24 all occurred on 14 August 1990. It is submitted that in the circumstances of established harassment it is 'not surprising that the threats were made'. It is argued that none of the threats were carried out nor is there anything to suggest that they were made seriously. In this regard the defence relies upon the evidence of Dr Brereton which it submits is to the effect that the threats of violence and displays of extreme anger were most likely a 'maladaptive response to the harassment borne out of paranoid personality disorder'.
2. Accordingly it is submitted that the probative value of the threats in question, including that made to Ms Littlewood, is marginal. It is submitted that unfair prejudice would result from their admission and that it would be 'manifestly unjust' for the prosecution to be permitted to rely upon these statements as being indicative of murderous intent in all the circumstances, including, in particular, the police harassment.

Threat against Roderick Campbell and Crispin Hull made by the accused on 14 August 1990 (Incident 23)

1. The Tendency Notice states that the substance of the evidence in relation to the threat against Roderick Campbell and Crispin Hull upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

Roderick Campbell was a journalist for The Canberra Times. On 14 August 1990, he received a telephone call from the accused regarding allegations of police harassment. The accused stated that The Canberra Times had not been as supportive as it could have been and said 'now hear this, unless it's stopped I'll shoot you and the fucking Editor.'

1. In August 1990 Mr Roderick Campbell was a journalist at The Canberra Times newspaper and Mr Crispin Hull was the editor. On 14 August 1990 Mr Campbell made and signed a statement to police in respect of matters that had occurred the same day. He said that at approximately 5 pm on that day he had received an incoming phone call at work. The caller stated his name as being David Eastman. Mr Campbell had spoken to the accused in the past and had no doubt that he was speaking to him on this occasion. Mr Campbell said the accused began the conversation by stating that he had spoken to Crispin Hull the editor of The Canberra Times. The caller then stated that he had spoken to Senator Tate about police harassment. Senator Tate had said that he had complete faith in the Ombudsman. The accused referred to dealings that he had had with the shadow Attorney General of the ACT Mr Terence Connolly. According to Mr Campbell, near the conclusion of the telephone call, the caller said "I'm at the end of my tether". He then went on to say "I hold a variety of people responsible". The caller said those responsible were:

The Law Society, the Bar Association, the Ombudsman, the Assembly including Labour members and; .... "that right-wing shit CONNOLLY and The Canberra Times."

1. Mr Campbell said that he believes that he then said "I hear what you say". To which the accused responded "Now hear this, unless it's stopped I'll shoot you and the fucking Editor". The accused then hung up the phone. Mr Campbell checked the time and observed that it was then 5:16 pm and with reference to the last words used by the accused before he terminated the call, Mr Campbell stated:

I am able to say that the words were recorded by me on a piece of paper as he said them and that I am as certain as I can be that they are verbatim of what he said.

1. Mr Campbell said that the tone of voice when the accused made the threat was 'emphatic'. He said that he took the threat seriously. The statement made by him to police was made at 10:40 pm on the same day as the telephone conversation with the accused.

Is Mr Campbell's evidence admissible pursuant to s 65(2)(c) (or s 65(2)(b)) of the Act?

1. There is a preliminary matter that arises in respect of the evidence of Mr Campbell. Mr Campbell is now deceased. The prosecution has served a s 67 notice of its intention to rely upon s 65(2)(c) of the Act to admit into evidence the statement Mr Campbell made to police on 14 August 1990.

Prosecution submissions regarding the s 67 notice in relation to Mr Campbell

1. In the course of oral submissions counsel for the prosecution, Ms Campbell, informed me that although the s 67 notice refers to a number of documents, the prosecution now intends to rely only on Mr Campbell's signed statement to police, made on the evening of 14 August 1990. In this regard, and as stated above, the amended s 67 notice refers to an intention to rely upon s 65(2)(c) of the Act, whereas it is clear from the oral submissions made before me that in fact the prosecution intends to rely on s 65(2)(b) of the Act.
2. The factors relied upon by the prosecution are that the statement was made:
   • (a) on the same day as the threat was made; and
   • (b) in circumstances whereby Mr Campbell had spoken to the accused on many occasions and was familiar with his voice; and furthermore
   • (c) in circumstances where it is said that the accused identified himself.
3. The circumstances include that Mr Campbell had made a contemporaneous note as the threat was being made over the phone and, it is submitted, the circumstance of Mr Campbell being an independent person, a journalist who had nothing to gain or lose from the proceedings, is a matter of relevance.

Defence submissions regarding the s 67 notice in relation to Mr Campbell

1. In response, Mr Stanton on behalf of the accused, in the course of oral submissions in the hearing of 11July 2017 in relation to the s 67 notice relating to Mr Campbell did not raise any substantial argument as to why the statement of Mr Campbell should not be adduced under s 65(2)(b) of the Act, other than that he made complaint about the penultimate paragraph of the statement:

I took the threat seriously because from incidents I am aware of in the past and from my own experience of his demeanour I think he is capable of some physical violence.

1. Ms Campbell informed me that the prosecution seeks that that paragraph remain in the statement. It is submitted that it is apparent that Mr Campbell, when he made the statement, 'wanted the people receiving this information to accept that the threats were meant as they were'.
2. Mr Stanton submits that the paragraph in question should be deleted as it contains an opinion and adds nothing to the statement and is thus inadmissible.

Consideration of the submissions in relation to the evidence of Mr Campbell

1. In my view Mr Campbell's statement is admissible. I consider the words 'I took the threat seriously' are relevant and admissible, however the following words need to be redacted from the statement:

.... because from incidents I am aware of in the past and from my own experience of his demeanour I think he is capable of some physical violence.

1. Subject to the redaction referred to above I consider that the statement of Mr Campbell is prima facie admissible pursuant to s 65(2)(b) of the Act and the question now to be determined is whether the evidence is admissible as a relevant Tendency 4 incident.
2. On the face of it, and like the threat that is the subject of Incident 22 referred to above, Mr Campbell's evidence appears to me to fall squarely within the tendency pleaded, it being a direct threat to shoot Mr Campbell and Mr Hull in circumstances whereby the accused perceived that they were refusing to accede to his demands to do something about police harassment.

Threat against Oliver Winder made by the accused to Sylvia Sim on 14 August 1990 (Incident 24)

1. The Tendency Notice states that the substance of the evidence in relation to the threat made against Oliver Winder upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

Oliver Winder was the First Assistant Secretary of the Office of Legal Aid and Family Services within the Commonwealth Attorney-General's Department. The accused telephoned Mr Winder to tell him that the police had begun to harass him again. When Mr Winder told the accused that he would pass that information on to the Minister, the accused told him not to try to get off the phone so quickly and that he did not care. That same day, the accused telephoned Mr Winder's secretary, Sylvia Sim, and stated 'you tell Mister Winder that if this police harassment isn't stopped I will shoot him.'

1. In 1990 Oliver Winder was employed as the First Assistant Secretary of the Office of Legal Aid in the Commonwealth Attorney General's department. On 14 August 1990, Mr Winder, who had had previous conversations with the accused, had two conversations with him, the first in the morning and the second in the early afternoon. In the course of the afternoon's conversation the accused informed Mr Winder that he had seen several vehicles drive past him slowly, then turn around and drive past him again. Mr Winder told the accused he would advise the Minister, but beyond that he 'really did not see what [he] could do about the matter', with which the accused became abusive and hung up the telephone.
2. On the same afternoon, Ms Sylvia Sim who was employed as a secretary to Mr Winder, received a telephone call from the accused. She recognised his voice as she had spoken to him on a number of previous occasions during some of which he had identified himself. The accused asked to speak to Mr Winder. Ms Sim advised him that Mr Winder was at a meeting. The accused then asked if a Mr Fernando was present, in response to which Ms Sim advised the accused that he was not available, but that she would try to locate him or alternatively would ask him to return the accused's telephone call. The accused told Ms Sim that he could not ring back because he was ringing from a public telephone. He then said "You are Mr Winder's secretary, aren't you?" to which she replied in the affirmative. The accused then said, "You tell Mr Winder that if this police harassment isn't stopped I will shoot him". The accused terminated the call immediately thereafter. Ms Sim wrote as he was speaking what had been said by the accused and subsequently made a typed note of the incident which note she then signed. The typed note was as follows:

I received a phone call at approximately 4.35pm.

The caller did not identify himself. However, I recognised Mr David Eastman's voice from previous telephone conversations with him.

He asked to speak to Mr Winder, then Mr Fernando, then Mr Benson.

I explained that none of them were immediately available but that I would try to locate Mr Fernando (whom I knew to be in the George Knowles Building).

He became impatient and said, "You are Mr Winder's secretary, aren't you?" I replied, "Yes". He said, "You tell Mr Winder that if this police harassment isn't stopped I will shoot him".

1. The note has a signature of Ms Sim and the date 14 August 1990 endorsed on it. Beneath the signature is handwriting which states:

I passed this message on by telephone to Mr Winder, who was at a meeting in Mr Skehill's office, at approx 4.45.

1. Ms Sim's statement to police was made the next day.
2. The defence submission is that the threat described by Ms Sim is not capable of being accepted as proof of the tendency alleged because it is not a 'genuine threat'. Ms Line submits that the threat was:

.... an instrumental threat in circumstances where Ms Sim was not acceding to Mr Eastman's demands, she was in fact trying to help him by trying to locate Mr Fernando in the building. It's not about acceding to demands and the perception thereof and making a threat but rather Mr Eastman, in her own words, just became impatient; that is he was just angry and, as I submitted yesterday angriness [sic] and threats is [sic] not enough to satisfy the tendency as drafted.

1. Ms Line submits that those matters, together with the lack of temporal proximity and the fact that the threat post-dates the threats 'trying to be proved' all mean that there is no significant probative value in the evidence.
2. In response the prosecution submits that the incident is of substantial probative value and as to the submission made on behalf of the defence that the threat was not serious, it is contended that clearly the threat was meant to be taken seriously and in fact was so taken by the people to whom the threat was addressed.
3. As with the threats the subject of incidents 22 and 23 referred to above, the threat described by Ms Sim appears to fall squarely within Tendency 4 as pleaded by the prosecution. It is a direct threat to shoot a nominated person, Mr Winder, in circumstances whereby it appears to be clear that Mr Winder was refusing to do anything in response to the complaints of the accused regarding police harassment.

Threats made by the accused against Terence Connolly in August 1991 (Incident 25)

1. The Tendency Notice states that the substance of the evidence in relation to the threats made against Terence Connolly upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

The accused telephoned the office of Australian Capital Territory Attorney-General, Terrence Connelly [sic], on 22 August 1991. He spoke to Mr Connelly's [sic] Executive Assistant and said 'tell Mr Connelly [sic] he'll be held responsible' and 'bang, bang'. On the same morning, the accused telephoned Gregory Cornwall at the Australian Capital Territory Legislative Assembly. He told Mr Cornwall that he had contacted Terrence Connelly [sic] regarding allegations of police harassment. The accused then stated 'the next incident of harassment I'm going to shoot Connolly through the fucking head.' On 27 August 1991, the accused again telephoned Mr Connelly's [sic] office and said 'not long for that cop Connelly [sic] cunt.'

1. As is clear from the above statement of the substance of the evidence, the prosecution seeks to rely upon three separate threats as proof of the pleaded tendency. First the statement made to Mr Connolly's executive assistant on 22 August 1991, secondly the statements made to Mr Cornwall on the same date, and a further statement made to Mr Connolly's executive assistant of 27 August 1991.
2. In the course of oral submissions, Ms Campbell referred to the fact that the Tendency Notice referred to three separate threats and said that the prosecution 'is obviously relying upon the main threat to Mr Connolly', which no doubt is the threat directed at Mr Connolly and addressed by the accused to Mr Cornwall in his conversation with the accused on 22 August 1991. The accused stated that upon 'the next incident of harassment I'm going to shoot CONNELLY [sic] through the head'.
3. In August 1991 Christine Chatillon was the executive assistant to the ACT Attorney General Mr Terence Connolly. On 22 August 1991 she received a phone call on her direct line from the accused whilst she was in her office. She had spoken to him on a number of occasions and on some of those occasions he had identified himself. Ms Chatillon says she answered the call by saying 'Good morning, Terry Connolly's office'. The voice on the other end said 'Tell Mr Connolly he'll be held responsible' and then the conversation ended as the caller hung up. Ms Chatillon stated that she knew it was the voice of the accused because she had spoken to him previously. She went straight into the office of the Attorney General and told him that she had just had Mr Eastman on the line and, although he did not identify himself, she recognised his voice. A minute or so later the telephone rang again. Ms Chatillon again answered. The person that Ms Chatillon said she recognised as the accused said 'Bang Bang' and hung up.
4. In August 1991, Greg Cornwall was the media secretary to the then leader of the ACT opposition Mr Trevor Kaine. On 22 August 1991 Mr Cornwall received a phone call from the accused who asked him if he had received a letter from him. In a record of interview with police which is undated, but which clearly took place on the same day as the telephone conversation, Mr Cornwall stated as follows:

Mr Eastman asked if I'd received a letter from him which up until that time I had not, it subsequently came in in the mail, and informed me that Craid [sic] DUBY had made some representations to the Attorney General Mr CONNELLY [sic], to see him, Eastman, over the recent refusal of the Ombudsman to accept any allegations of harassment that David Eastman may make unless they were verified by an independent witness. He then told me that DUBY had been informed by Mr CONNELLY [sic] that CONNELLY [sic] would not see Mr EASTMAN. I then said to Mr Eastman "Okay, I'll talk to Craig, he's just down the corridor and I'll also talk to Trevor". I might explain that Trevor I'm referring to is Trevor Kaine the Leader of the Opposition. Eastman replied and I quote: "You'd better because the next incident of harassment I'm going to shoot CONNELLY [sic] through the fucking head". Whereupon he hung up.

1. Mr Cornwall was asked how the accused sounded on the phone. He replied:

Very angry. Er, his usual um, er, well, it's more than anger really he becomes very infuriated I suppose is the word.

1. Some days later, on 27 August 1991, Ms Chatillon received another phone call which she said she recognised as being from the accused. On this occasion her evidence is that she made a note at the time of the phone call. The caller said 'Not long for that Connolly cunt'.
2. Neither Ms Chatillon nor Mr Cornwall gave evidence at the first trial. The defence submits that the accused suffers unfairness if these witnesses give evidence for the first time in 2018. Furthermore it is argued that the threat received by Mr Cornwall does not 'fit the tendency described' because in effect the accused is seeking assistance from Mr Cornwall. It is argued that Mr Cornwall was assisting the accused by saying 'I'll talk to Craig. He is just down the corridor and I'll also talk to Trevor' and that the response of the accused 'You better because the next incident of harassment I'm going to shoot Connelly [sic] through the effing head' was not a genuine threat, but something 'further for whatever purpose he had through provocation or instrumentality'. It is submitted that whatever was said by the accused was in the circumstances whereby he was complaining about harassment.
3. As with the threats the subject of incidents 22, 23 and 24 referred to above, the evidence of Mr Cornwall appears to fall squarely within Tendency 4 as pleaded by the prosecution. It is evidence of a direct threat to shoot Mr Connolly in the head in circumstances whereby, it appears, the accused perceived that Mr Connolly was refusing to accede to the accused's demands to end police harassment.

Threat against Phillip Cotter made by the accused on 20 November 1992 (Incident 26)

1. The Tendency Notice states that the substance of the evidence in relation to the threat made against Phillip Cotter upon which the prosecution seeks to rely as proof of Tendency 4 is as follows:

On 20 November 1992, Detective Constable Phillip Cotter was sitting in a car when the accused approached him and asked for his name. Detective Constable Cotter said to him "you've got my name.' The accused replied 'you gave a false name. I want your real name.' As Detective Constable Cotter commenced driving away the accused said to him 'I'll get your name cunt, and when I do you're dead. Do you understand?'

1. On 20 November 1992 Detective Constable Cotter was engaged with other surveillance team members who followed the accused when he was riding a bicycle from the general area of Ainslie Avenue to the general area of the Police Boys' Club in Turner. The surveillance team lost sight of the accused but his bicycle was observed to be leaning against a fence in the vicinity of the Police Boys' Club. Periodic checks throughout the morning revealed that the bicycle remained at the fence. Some hours later Detective Constable Cotter was seated in the driver's seat of a police surveillance vehicle some six or seven hundred metres from where the bicycle was situated, when he observed in his rear vision mirror the accused get out of a car behind him. The accused came to the driver's side window and asked Detective Constable Cotter his name. It is unclear from his statement of 20 November 1992 as to whether or not Detective Constable Cotter gave the accused his name or indeed a false name, but upon Detective Constable Cotter commencing to drive off, the accused attempted to unlock and open the driver's side car door and at the same time put his head in the open window and said:

I'll get your name cunt, and when I do you're dead. Do you understand?

Defence submissions in relation to the threat to Detective Constable Cotter

1. The defence submits that the alleged threat to Detective Constable Cotter appears to be a 'maladaptive response to surveillance perceived by Eastman to be harassment'. The defence submits that Detective Constable Cotter's refusal to give his name to Mr Eastman when asked was 'inflammatory' and arguably intended to provoke the accused. It is submitted that the accused's perception of harassment by Detective Constable Cotter's surveillance was understandable due to the occasionally unlawful behaviour of other AFP members conducting surveillance of the accused. The evidence by the accused at the first trial was to the effect that at some time Detective Constable Cotter had made a death threat and brandished an imitation pistol at him. The accused stated further that he had charged Detective Constable Cotter with assault in a private prosecution, and that Detective Constable Cotter's surveillance was the opposite of covert.
2. The defence submits that these circumstances, taken in concert with Martin AJ's uncontested findings about unlawful police harassment, and the expert psychiatric evidence received in the hearing of a pre-trial application under s 84 of the Act, mean that it would be unjust to use as tendency evidence the threat 'I'll get your name cunt, and when I do you're dead'. It is submitted that the threat was not carried out, its probative value is low and that there is a substantial risk of unfair prejudice.
3. I observe that it is entirely unclear as to whether the allegations made by the accused against Detective Constable Cotter at trial are said to precede or post-date the incident of 20 November 1992 and therefore whether those allegations are relevant to the issue currently before me.

Prosecution submissions in relation to the threat to Detective Constable Cotter

1. The prosecution argues that the allegations made against Detective Constable Cotter at trial are unproven and observes that Detective Constable Cotter gave evidence at the first trial and the accused chose not to cross-examine him. Furthermore it is difficult to see how the allegations against Detective Constable Cotter would have impacted upon the circumstances 'where it is argued the accused was the aggressor and Mr Cotter was effectively the victim'.

Is Detective Constable Cotter's evidence admissible pursuant to s 65(2)(b) of the Act?

1. Before turning to consider the question of whether or not the circumstances of the Cotter incident are sufficiently probative to be admissible as a Tendency 4 incident, there is a further matter to be considered. Mr Cotter is deceased and the prosecution has served a s 67 notice in respect of his evidence.
2. As stated above Mr Cotter gave evidence at the first trial about matters other than the threat which is the matter presently under consideration. The defence has generally conceded that the evidence previously given at trial is admissible under s 65(3) of the Act. However in respect of the evidence of the threat referred to above, the prosecution seeks to rely upon a statement made by Detective Constable Cotter on the same day as the threat was made. The prosecution submits that Detective Constable Cotter was a police officer engaged in the execution of his duties, and the statement was made on the day that the threat was made in circumstances which, it is submitted, fall clearly within s 65(2)(b) of the Act. It is submitted that the statement was made shortly after the events in question and thus is unlikely to be a fabrication.
3. Apart from submitting that there is a 'paucity of evidence in relation to the circumstances' in which the statement was made, the defence was unable to advance any argument as to why the statement should not be admitted under s 65(2)(b) of the Act. In my view it is apparent on the face of the document that the statement came into existence as soon as practicable after the happening of the event in question and, on the face of the document again, the circumstances appear to be such that there is no reason to consider that it is likely to be a fabrication. That said, however, and as stated below there are a number of issues which arise as to whether the statement is a full statement of the events in question. Subject to that issue it does appear to me that if the content of the statement is relevant, then the statement is admissible pursuant to of the Act.

Consideration of the evidence of the threat to Detective Constable Cotter

1. Accordingly, I return to the question of whether or not the evidence of Detective Constable Cotter has significant probative value taken by itself, or having regard to the other evidence to be adduced. In my view the evidence of the threat to Detective Constable Cotter does not fall within the tendency pleaded. Tendency 4 as pleaded encompasses a threat to shoot or kill in circumstances of perceived refusal to accede to the accused's will. Whilst the assertion that 'you're dead' may be seen as a threat to kill, it is certainly not a direct nor an explicit threat to carry out the threat, and could be seen equally as a threat to cause trouble for Detective Constable Cotter by way of making a complaint about his behaviour, as the accused had stated at the commencement of the confrontation with Detective Constable Cotter.
2. Furthermore, and although on the one hand it could be construed that the threat in question was in response to the accused's perception that Detective Constable Cotter did not accede to his demand to supply his name, the true circumstances are far from clear. Detective Constable Cotter's statement is to the effect that after the accused asked for his name, Detective Constable Cotter said 'You've got my name'. He stated that he then started the car with which the accused said 'you gave a false name, I want your name, I want your real name'. Detective Constable Cotter's statement does not assist in any real way in elucidating this exchange. Did Detective Constable Cotter give his name at the scene and neglect to refer to that in his statement? Alternatively, had he had an earlier discussion with the accused when either he gave his real name, or gave a false one? These are matters which should have been explained by Detective Constable Cotter in his statement. They are matters which bear upon the response of the accused and they are matters that can no longer be explored in crossexamination of Detective Constable Cotter.
3. In the end result I am not satisfied that the s 65 evidence of Detective Constable Cotter has significant probative value in support of the pleaded tendency. Furthermore, even if the evidence has sufficient probative value to pass the s 97 (1)(b) test, I consider that the prejudicial effect outweighs the probative value of the evidence in question, particularly in the circumstances of the somewhat vague statement made by Detective Constable Cotter as to the exchange between him and the accused, and the fact that the accused's counsel will not have the opportunity to crossexamine him.

Which incidents (if any) are capable of being admissible as evidence of Tendency 4?

1. Accordingly, after an analysis of the incidents relied upon by the prosecution as being evidence of Tendency 4, I have concluded that only the evidence which is the subject of incidents 16, 22, 23, 24 and 25 is capable of being admissible as tendency evidence. Other than the threat made to Dennis Barbara (Incident 16) all of the threats which I consider are capable of proving the tendency are threats that post-date the murder of Mr Winchester.
2. There can be no doubt that evidence of tendency can be probative whether it predates or post-dates the date of the charged offence. As a general principle of evidence it has long been held that subsequent conduct may be relevant in consideration of motive, or a state of mind generally, as existing at an earlier time (see Herald and Weekly Times v McGregor [1928] HCA 36; (1928) 41 CLR 254 at 265 and Thompson v The King [1918] AC 221). Subsequent decisions directly related to tendency reasoning support that general proposition. In RH v The Queen [2014] NSWCCA 71; 241 A Crim R 1, Ward JA observed at [124] that the prosecution case was in effect:

.... that the tendency evidence demonstrated a pattern of behaviour on the part of the appellant in relation to young girls in his care, whereby he abused them sequentially while they were in a particular age range and then either lost interest in them or events occurred that caused him to cease his abuse of them.

1. In relation to that tendency evidence that post-dated the charges before the Court, Ward JA said at [125]:

As to the tendency evidence tendered in relation to the count involving Kay, in my opinion it was not an invitation to engage in an impermissible process of reasoning for the jury to be asked to conclude that, if the jury were satisfied that the admitted conduct towards Lisa in 2005-2006 established beyond reasonable doubt the tendency claimed by the Crown (a matter of which the trial judge made clear it was for the jury to be satisfied), then it was likely that the appellant had a similar tendency or state of mind a mere 2-3 years' earlier (when the incident of which Kay complained was said to have occurred) and hence that the jury should have the requisite level of satisfaction that Kay's complaint was made truthfully, taking into account for that purpose the other evidence relevant on that issue.

1. In R v SK, SK v R [2011] NSWCCA 292 the issue of a temporal gap between the tendency incidents and the date of the commission of the charged offence was considered. In that case nineteen counts of sexual offences were alleged against four complainants (WS, DiS, DaS and KD). Two had occurred between 1980 and 2003. The Tendency Notice referred to events the subject of charges and to other events, not the subject of charges. The tendency sought to be proved was the tendency of the accused to show sexual interest in female and male children, aged fourteen years or below, who were related to him and who were visiting his home; to remove or cause to remove for sexual purposes articles of clothing of those female and male children; and to touch in a sexual manner those children. The evidence was that DiS and WS, who were sisters, made complaints to the Department of Community Services in 2003 about the sexual misconduct of the accused. They were unaware that KD, who was considerably older than the other three complainants, had complained to her sister in 1993 and to her mother in 1994 of the sexual misconduct of the accused towards her. DaS made a complaint to the Department of Community Services in 2005. DaS had told his sisters, WS and DiS, in 2004 that the accused had committed sexual assault against him. His sisters did not tell him of the allegations made by them against the accused. Thus it is apparent that there was a substantial temporal gap between the alleged commission of offences against the four complainants. The Court of Appeal determined that the evidence of each of the complainants was evidence that the accused had a tendency to act in the particular way described, and had significant probative value and thus was admissible under s 97 of the Act. This finding was made notwithstanding the substantial temporal gap between the tendency incidents pleaded. Furthermore, it held that later incidents were admissible as tendency incidents in respect of earlier alleged incidents. Latham J, with whom Giles JA and Rothman J agreed, stated at [26]:

Far from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the applicant's underlying pattern of behaviour.

1. In R v Beserick (1993) 30 NSWLR 510 ('Beserick') Hunt CJ at CL said at 521:

It is but a very familiar principle of the law of evidence that subsequent behaviour may be regarded in order to indicate a state of mind which existed at an earlier time, .... Remoteness of the acts goes to the weight, not the admissibility of the evidence.

1. On the basis of the above authorities the prosecution submits that incidents that post-date the murder are 'capable of affecting the assessment of the probability of the existence of Tendency 4 which will assist the jury to determine whether (the accused) made the Barbara (and Roantree) threats.
2. On the other hand there is ample authority for the proposition that reliance upon incidents which are alleged to have occurred subsequent to the offence in order to establish tendencies said to exist at the time of the offence should at the minimum be accorded less weight than incidents that preceded the time of the offence. As set out above, in Beserick Hunt CJ stated that remoteness in time goes to weight. In relation to that case (which was a case involving sexual offences) he said at 521522:

As the authorities which I have cited show, remoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity.

1. In R v Gregory (No 2) [2009] VSC 509 at [81], Whelan J (as he then was) in a case involving charges of fraud said:

The authorities suggest that it is often "safer", and more natural or logical, to reason prospectively, and that subsequent acts must therefore be used with caution.

1. In R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466 at [74] and in relation to a case involving allegations of conspiracy to manipulate the price of securities contrary to the Corporations Act 2001 (Cth) Kaye J stated:

In general, some caution is exercised in admitting evidence as to subsequent events. Ordinarily, it is required that those events be closer in time to the date of the offence than previous events. Generally, subsequent events are accorded lesser weight than previous events in establishing the relevant context or background to the offence as charged.

1. As stated above the defence submits that none of the incidents upon which the prosecution relies and which postdate the murder of Mr Winchester should be admitted as proof of Tendency 4 as pleaded by the prosecution.
2. First it is submitted that because the incidents postdate the Barbara threat (incident 16) their probative value is diminished because it cannot be assumed that the accused's intention in making the later threats reflects upon his intention when making the threat in the presence of Mr Barbara. It is argued that the effluxion of time is such that 'the likelihood is that [the accused's] intention may be different'. In this regard it should be observed that incidents 22, 23 and 24 all took place on 14 August 1990, approximately 20 months after incident 16 is alleged to have occurred. Incident 25 took place in August 1991 over a year after those earlier incidents and thus approximately 32 months after incident 16.
3. Secondly the defence relies upon the findings of Martin AJ, in the course of his inquiry, to the effect that the AFP had engaged in unlawful harassment of the accused following the murder of Mr Winchester, which finding has not been challenged by the prosecution. It is submitted that the evidence of Dr Milton and Dr Brereton is unanimously to the effect that the accused suffers from a paranoid personality disorder and that the effect of police harassment would have been magnified in the mind of the accused during the relevant period. In this context it is argued that at the retrial it is:

.... unfair for the Crown to be permitted to use against [the accused] .... threats that [the accused] is said have made in circumstances where he was subjected to unlawful harassment by police, was particularly disturbed by the harassment due to his mental disorder, and the threats were made while he was attempting to have the harassment stopped.

1. It is argued that with the preoccupation the accused had with, what he perceived to be, continuing police harassment from May to August 1990 in particular, it is 'unsurprising' that three of the incidents under consideration all occurred on the same day. It is contended that the accused's:

.... threats of violence and extreme anger was most likely a maladaptive response to the harassment, borne out of his paranoid personality disorder.

1. The defence places substantial reliance upon the fact that each of the incidents presently under consideration occurred during the period of time that the AFP was engaging in overt and covert surveillance of the accused. The defence relies upon the findings of Martin AJ in this regard. Martin AJ stated at [1595] of his report that there is:

.... evidence to support the view that overt surveillance was conducted with the intention of harassing the [accused] and, independently of surveillance, pressure was applied to the [accused] through the tactic of 'in-your-face' contact.

1. In reference to an interview conducted by Detective Sergeant McQuillen with the accused on 26 June 1990, Martin AJ found at [1619]:

.... the plain purpose of the interview was to harass the [accused] about his failure to speak to police about the murder of the deceased and to maintain the pressure on the [accused] in pursuance of the 'in-your-face' tactic which police had deliberately pursued with vigour since early 1989.

1. Accordingly it is submitted on behalf of the accused that the probative value of the threats is marginal, whilst the unfair prejudice that would result from the admission of the evidence is substantial. It is argued that 'it would be manifestly unjust for the prosecution to be permitted to rely on these statements as indicative of murderous intent in all of the circumstances, including police harassment'.

1. A number of issues arise in relation to the admissibility of the evidence relating to the incidents which I have concluded are capable of being admissible in support of the tendency pleaded as Tendency 4, namely incidents 22, 23, 24 and 25.
2. The first of these issues is the temporal nature of them and in particular the fact that, with the exception of incident 16, they all post-date the murder of Mr Winchester. As stated above, the nature of the threats fits squarely within the pleaded tendency being threats to shoot or kill people who were perceived by the accused not to be acceding to his will or his demands. In that regard the incidents are consistent with the nature of the threat which is the subject of the evidence of Mr Barbara. Whilst it is true that the authorities do demonstrate that evidence in relation to tendency can be admissible notwithstanding the fact that the evidence postdates the date of the offence under consideration, I have been unable to find any case which is comparable with the circumstances now under consideration by me. On the other hand, the evidence, notwithstanding that temporal issue, does have the capacity to demonstrate a pattern of behaviour on the part of the accused which is capable of affecting the assessment of the probability of the existence of Tendency 4, which in turn is probative as to the confirmation of the intermediate fact in issue, that the accused made a threat to kill Mr Winchester to Mr Barbara. That is, the pattern of behaviour that the accused exhibited in making threats to shoot Senator Reid, Roderick Campbell, Crispin Hull, Oliver Winder and Terence Connolly was consistent with the state of mind at the time of the threat expressed to Mr Barbara.
3. As stated by Hulme J in R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21 at [56], in an admittedly different context, 'threats of killing another human ... are ... extreme or unusual'. In my view the evidence does have probative value notwithstanding the remoteness in time from the date of the murder. The probative value is that it renders more probable, or perhaps more accurately, less improbable, that the accused uttered the threat directed at Mr Winchester to Mr Barbara, and this is probative of an intermediate fact which is relevant to the motive of the accused to murder Mr Winchester. The question is whether the probative value can be said to be significant. Clearly the probative value is reduced by the temporal factors being first that all relevant incidents post-date the murder of Mr Winchester, and secondly the significant lapse of time between that event and the occurrence of the subsequent incidents. Furthermore, the fact that three of the incidents all occurred on the same day does tend to support the argument advanced on behalf of the accused that such incidents occurred in response to the belief of the accused that he was subject to police harassment at that time.

with a threat to kill or inflict grievous bodily harm on a person .... is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

1. Furthermore, and as submitted by Ms Line on behalf of the accused, there is a risk that the evidence of the threats to kill may lead the jury to reason impermissibly that the accused is, to use her words, 'in all likelihood a horrible person and the kind of person who would commit the crime charged'. Whilst, if the evidence was to be admitted, I would of course give a direction to the effect that such reasoning would not be permissible, that risk remains.
2. A further factor in this regard is that the threats in question were not made against persons who were unknown in the Canberra area. It is inarguable that Roderick Campbell, Crispin Hull and Terence Connolly, by reason of their occupations, at least at that time, were well-known in the local community from which the jury will be drawn. That fact may well raise an additional risk of prejudice. Likewise it is relevant that Mr Campbell's evidence will be introduced before the jury pursuant to s 65(2)(b) of the Act and counsel for the accused has no capacity to crossexamine him. By themselves, the latter two considerations may not amount to serious prejudice, but in the context of this case where, if the evidence is admitted, there will be evidence of four separate uncharged criminal acts committed by the accused, there appears to me to be what might be described as a cumulation of prejudicial matters which require to be considered.
3. It is trite to say that evidence is prejudicial if there is a risk that the jury might misuse it, that is by using it other than by way of considering its rational impact on the probability of a fact in issue. As stated above, I am required to make a judgment rather than exercise a discretion. In that regard, I observe that the onus under s 101(2) of the Act is on the prosecution to establish that the probative value of the evidence substantially outweighs any prejudicial effect (see R v AH (1997) 42 NSWLR 702 (Hunt CJ at CL, Ireland and Levine JJ per Ireland J at 709). As the High Court in Hughes v R [2017] HCA 20; at (per Keifel CJ, Bell, Keane and Edelman JJ) said:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence.

1. The test to be applied by me in the weighing process requires me to evaluate the probative value of the evidence in the light of any prejudicial effect that it may have upon the accused.
2. The probative value of the evidence relied upon by the prosecution is not that it is directly supportive of the ultimate fact in issue in this case, that is the guilt or otherwise of the accused of the murder. Rather, it is probative of an intermediate fact in issue. On the other hand, the admission of the evidence does have the potential, notwithstanding directions that I may give, to generate unfair prejudice against the accused. The evidence reveals highly unusual behaviour which the jury may consider to be despicable and reflective of a violent disposition on the part of the accused. Such a conclusion on the part of the jury may well lead to impermissible propensity reasoning. On any view the evidence has a potential to create a distraction in the mind of the jury.
3. In my view the proper application of the balance required in s 101(2) of the Act, leads to the judgment that the prosecution has not, in respect of the alleged tendency incidents now under consideration by me, satisfied its onus to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused.
4. Accordingly the evidence relied upon as incidents numbered 22, 23, 24 and 25 are not admissible as tendency evidence. Obviously the threat against Colin Winchester made by the accused to Dennis Barbara, which I have ruled previously is otherwise admissible, cannot stand alone as a tendency incident. The consequence is that the prosecution has been unable to establish that any of the incidents it relies upon are admissible as tendency evidence and therefore there will be no tendency evidence led before the jury.

1. The evidence relied on by the prosecution and referred to in its Tendency Notice as incidents numbered 2, 4, 7, 8, 13, 15, 16, 22, 23, 24, 25 and 26 are not admissible as evidence of Tendency 4 as pleaded by the prosecution.
2. That until further order these orders and the reasons for this ruling are not to be published or disclosed other than to the parties and their legal representatives.

I certify that the preceding two-hundred and nine [209] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ