Eastman v Director of Public Prosecutions (No 13)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Eastman v Director of Public Prosecutions (No 13)
Citation:	[2016] ACTCA 65
Hearing Dates:	24–26 October 2016
DecisionDate:	2 December 2016
Before:	Osborn, Whelan and Priest AJJ
Decision:	Leave to appeal refused.
Category:	Interlocutory appeal
Catchwords:	CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Principles applicable on leave to appeal an interlocutory decision – Position of court of appeal on reviewing decision of trial judge in the course of criminal proceedings – Whether assessments and conclusions of trial judge open – Whether proper assessment of the disadvantages facing the applicant – Whether proper account taken of relevant considerations – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged apprehended bias – Whether fair-minded lay observer might reasonably apprehend bias from ‘effect’ of passages in text of judgment – Lay observer informed to extent necessary to make fair judgment – Whether judge formed ‘pervasive negative view’ of applicant – Statements reveal irritation and frustration on part of judge – Statements to be assessed within full context – No error of fact identified – Criticism also directed at respondent – Informed lay observer would not apprehend bias – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Judge refusing stay took into account applicant’s reliance before him of arguments similar to those put to Full Court of the Australian Capital Territory Supreme Court when resisting order for retrial – Whether reliance on similar arguments irrelevant – Whether productive of error – Inevitable that many arguments would be relevant both to issues before the Full Court and before the judge considering stay – Independent consideration given by judge to all relevant issues – Whether judge erred in observing that the applicant faced a more difficult task in seeking a permanent stay after an appellate court ordered a retrial – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness resulting from public interest immunity claims with respect to information disclosing the identity of police informers – Application of Evidence Act 2011 (ACT) s 130 – Whether irremediable consequential unfair prejudice to the applicant demonstrated – Material uncertainty as to evidence to be led at trial – Capacity of trial judge to clarify evidentiary issues and regulate procedure – Matters advanced on appeal which were not advanced to the trial judge – Evaluation of competing public interests – Whether trial judge’s conclusion concerning public interest open – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness due to inadequacy in original police investigation – Loss of chance to explore avenues of enquiry which may have led to acquittal – Loss of potentially relevant evidence not sufficient to demonstrate trial unfair – Matters relied on capable of evaluation by properly instructed jury – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness due to pre-trial publicity – No error in trial judge’s analysis of issue – Prejudice complained of not sufficient to create a fundamental defect in the trial – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Cumulative unfairness – Whether trial judge impermissibly disaggregated complaints of unfairness – Whether trial judge’s overall conclusions concerning unfairness open – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged oppression resulting from the retrial – Allegation retrial would bring the administration of justice into disrepute – Where initial trial resulted in miscarriage of justice – Where applicant has spent 19 years in custody following wrongful conviction – Where allegation prosecuting authorities aware of matters occasioning miscarriage of justice – Where retrial will be burdensome and costly – Whether trial judge’s view open – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Applicant seeks to rely on an alternative hypothesis as to who may have committed the murder – Strength of alternative hypothesis said to detract from strength of Crown case – Whether judge refusing stay erred in determining the alternative hypothesis to be speculative as matters presently stand – Whether judge erred in departing from the assessment of the strength of the alternative hypothesis as found in the Martin Report – Judge’s view consistent with that in the Martin Report – Not possible to assess the strength of alternative hypothesis until adequately tested – Not possible as matters currently stand to infer Crown case not strong because of alternative hypothesis – Leave to appeal refused. CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Evidence of key prosecution ballistics expert at applicant’s original trial discredited in Martin Inquiry – Expert employed by Victoria Police was consultant to Australian Federal Police – Information capable of materially affecting assessment of expert’s reliability and credibility known to Victoria Police – Failure by Victoria Police to disclose information to Australian Federal Police or those concerned with prosecution – Australian Federal Police and those concerned with prosecution unaware of information relating to expert’s reliability and credibility – Whether judge refusing stay erred in failing to find breach of duty of disclosure – Non-disclosure by Australian Federal Police and Director of Public Prosecutions inadvertent – No potential for an unfair trial – Leave to appeal refused.
Legislation Cited:	Court Procedures Act 2004 (ACT) Court Procedures Rules 2006 (ACT) Crimes Act 1900 (ACT) Director of Public Prosecutions Act 1991 (SA) Evidence Act 2011 (ACT) Supreme Court Act 1933 (ACT)
Parties:	David Harold Eastman (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Mr P Tehan QC with Mr P Doyle and Ms L Line (Applicant) Mr M Thangaraj SC with Dr P Dwyer and Mr K Lee (solicitor) (Respondent)
Solicitors: Legal Aid ACT ACT Office of the Director of Public Prosecutions
File Number:	ACTCA 15 of 2016
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Ashley AJ Date of Decision: 14 April 2016 Case Title: R v Eastman [No 9] Citation: [2016] ACTSC 69

Introduction
The grounds of appeal
The background facts

Overview of the stay application and the Stay Reasons

Principles governing the permanent stay of criminal proceedings
Principles applicable to an interlocutory appeal

Was the order of Ashley AJ an interlocutory order?
The discretionary nature of the order in issue

Apprehended bias (Ground 1)

Material relied upon in relation to apprehended bias

Submissions
Stay Reasons complaints — the ‘effect’ of passages in the Stay Reasons
Analysis of complaints concerning findings on issues raised in the stay application —Stay Reasons complaints (e), (f), (g) and (h)
Analysis of complaints concerning observations made as to the conduct of the stay application — Stay Reasons complaints (b), (c) and (d) and additional complaint (b)
Complaints as to observations concerning the history of the matter — Stay Reasons complaints (a) and (i)
Observations of a more general character in the course of hearings — additional complaints (a), (c) and (d)

Waiver
Pursuit of matters ‘regardless of merit’
‘New and intendedly ingenious twist’
The combined effect of the judge’s negative view
Conclusion on apprehended bias

Taking into account the applicant’s previous reliance on similar arguments (Ground 6)

The applicant’s submissions
The respondent’s submissions

Analysis

Ashley AJ failed to place any or sufficient weight on the matters which tend to compromise the fair presentation and consideration of the applicant’s defence at any retrial, and failed to consider the combined force of these matters (Ground 2)

Issues of confidentiality

[redacted]

[redacted]
Inadequacies in the police investigation of the alternative hypothesis
Pre-trial publicity
The counterbalance of public interest
Cumulative unfairness

Grounds 3 (oppression resulting from a retrial) and 4 (bring the administration of justice into disrepute)
Characterising the ‘alternative hypothesis’ as ‘speculative’ (Ground 5)
Prosecution’s failure to disclose relevant material (Ground 7)

Conclusion

THE COURT:

Introduction

At about 9:15 pm on 10 January 1989, Colin Winchester, an Assistant Commissioner of the Australian Federal Police (‘AFP’) — and the highest ranking police officer serving in the Australian Capital Territory — was murdered. He was shot twice to the head with a .22 calibre firearm.

On 3 November 1995, the applicant, David Harold Eastman, was convicted of Mr Winchester’s murder. A week later, on 10 November 1995, the applicant was sentenced to be imprisoned for life.

The applicant appealed against his conviction to the Full Court of the Federal Court[1] and the High Court,[2] but without success.
[1] Eastman v The Queen (1997) 76 FCR 9.
[2] Eastman v The Queen (2000) 203 CLR 1.

On 3 September 2012, a judge of the Court made an order under s 424(1) of the Crimes Act 1900 (ACT) that there be an inquiry into the applicant’s conviction for the murder of Mr Winchester. The inquiry was conducted by Martin AJ (‘the Martin Inquiry’), who, on 29 May 2014, pursuant to s 428(1) of the Act, provided his report[3] to the Registrar of the Court.[4] He found that a substantial miscarriage of justice had occurred in the applicant’s trial, and recommended that the Full Court make an order under s 430(2)(c) of the Act to the effect that the conviction be quashed and no retrial be ordered.[5]
[3]Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester: Report of the Board of Inquiry, 29 May 2014 (‘the Martin Report’).
[4]The background to the Martin Inquiry — including an earlier inquiry conducted by Miles CJ pursuant to s 475 of the Crimes Act 1900 (ACT) — is set out in the Martin Report [16]–[32].
[5]Prior to the Martin Inquiry, between June 2000 and September 2012, there had been a number of applications and appeals, which for present purposes it is unnecessary to describe. See Martin Report [20]–[32].

On 22 August 2014, the Full Court ordered that the applicant’s conviction for murder be quashed, but that — contrary to the recommendation of Martin AJ — there be a new trial.[6]
[6]Eastman v DPP [No 2] (2014) 9 ACTLR 178 (Rares and Wigney JJ, and Cowdroy AJ).

Relying on a combination of circumstances, the applicant then applied for a permanent stay of the proceeding. The application was opposed by the Crown. In the result, on 14 April 2016, Ashley AJ refused to grant a permanent stay.[7]
[7] R v Eastman [No 9] [2016] ACTSC 69 (‘Stay Reasons’).

The applicant seeks leave to appeal against that decision.[8]
[8] See Supreme Court Act 1933 (ACT) s 37E(4); Court Procedures Rules 2006 (ACT) r 5311.

For the reasons that follow, we would refuse leave to appeal.

The grounds of appeal

In support of the present application, the applicant advanced seven grounds as follows:

i. A fair-minded lay observer might reasonably apprehend that Ashley AJ might not have brought an impartial mind to the resolution of the stay application;
ii. Ashley AJ failed to place any or any sufficient weight on the matters which tend to compromise the fair presentation and consideration of the [applicant’s] defence at any retrial, and failed to consider the combined force of those matters;
iii. Ashley AJ failed to place any or any sufficient weight on the matters which mean that a retrial is unjustifiably oppressive to the [applicant], and failed to consider the combined force of those matters;
iv. Ashley AJ failed to place any or any sufficient weight on the matters which mean that a retrial of the [applicant] tends to bring the administration of justice into disrepute, and failed to consider the combined force of those matters;
v. Ashley AJ erred in concluding that the alternative hypothesis to be advanced by the [applicant] at any retrial amounted to no more than speculation;
vi. Ashley AJ took into account an irrelevant consideration, namely the fact that the [applicant] had relied on similar arguments in contending that no retrial should be ordered by the Full Court in Eastman v Director of Public Prosecutions [No 2] (2014) 9 ACTLR 178;
vii. Ashley AJ erred in assessing the significance of the failures of the prosecution to disclose relevant material by:
a. failing to take into account the conduct of Victoria Police;
b. failing to take into account the significance of adverse curial and coronial findings regarding the witness Mr Barnes;
c. misinforming himself of the nature of Mr Barnes’ conduct at the Victorian State Forensic Science Laboratory and the circumstances of his departure from employment with Victoria Police; and
d. discounting the significance of the prosecution's inadequate disclosure by reference to the conduct of the defence at the first trial, and in particular the failure of the defence to conduct its own inquiries into the work of Mr Barnes.

Before we come to consider the grounds, however, so as to appreciate the competing arguments it is necessary to say a little of the evidence in the applicant’s trial.[9] Since it is directed to the main issues raised in this application, our summary of the evidence is deliberately selective (and hence necessarily incomplete).

The background facts

[9]The evidence at trial and details of some of the applicant’s behaviour in the course of the trial are set out in the Martin Report ([33]–[37]) and in the reasons of the Full Court of the Federal Court on the conviction appeal: Eastman v The Queen (1997) 76 FCR 9, 13–38.

As we have mentioned, Mr Winchester was assassinated at about 9:15 pm on 10 January 1989. He was shot twice in the head at close range.

Shortly before he was shot, Mr Winchester had departed from his normal routine, and had visited his brother in Queanbeyan. It is thus improbable that the assassin was aware of Mr Winchester’s likely movements.

At the time that he was shot, Mr Winchester was apparently in the process of alighting from his car, which was parked in his neighbour’s driveway.

Mr Winchester’s wife gave evidence that she heard her husband’s car at about 9:15 pm. A short time later she heard noises which sounded ‘like sharp stones coming up on to the front of the window’. Mrs Winchester said that there were two distinct sounds, the second following immediately upon the first. It might be inferred that the sounds that she heard were the two shots that killed her husband. When her husband had not come into the house, Mrs Winchester went looking for him. She found his body slumped behind the steering wheel, with one foot on the ground. The driver’s door of the car was open; the transmission was in ‘park’; and the car’s lights had been turned off.

Mr Winchester had been shot once to the back of the head and once to the face on the right side. Medical evidence suggested that the wound to the back of Mr Winchester's head occurred first and was likely to have caused death instantaneously. The Crown's case was that the shots had been fired from a .22 calibre firearm to which a silencer had been fitted, and that supersonic ammunition had been used. If the Crown was correct about the use of a silencer, the sound of the shots would have been muffled. Use of a silencer would also explain the manner in which Mrs Winchester described the sounds that she heard.

Police attended the scene and searched the immediate area. They found two ‘PMC’ cartridge cases. No firearm was located — and, indeed, the murder weapon has never been found — although microscopic examination of the two PMC cartridge cases by Superintendent Ian Prior led him to form the opinion that the murder weapon was a Ruger 10/22 rifle. As we understand it, Superintendent Prior’s opinion on this aspect was not challenged at trial by the defence.

Investigating police promptly sought the assistance of Robert Barnes from the Victorian Forensic Science Laboratory (for convenience, ‘SFSL’[10]). He arrived at the scene at about 3:00 am on 11 January 1989, and set about the collection and interpretation of gunshot residue (‘GSR’). Barnes took stub samples from both entry wounds and from selected areas of the car. Detective Sergeant Peter Nelipa also vacuumed the ground in the immediate area of the driver's door of the car. The applicant’s Mazda motor car was later impounded. Both Barnes and Detective Nelipa searched it for GSR on 18 January 1989. We will discuss the further evidence concerning GSR — and its importance to the applicant’s trial — when we turn to consider ground 7.
[10]It underwent a name change in 1993: Stay Reasons [90] n 72, [100] n 75.

The Crown case was that the applicant had purchased the murder weapon — said to be a Ruger 10/22 rifle fitted with a silencer — from one Louis Klarenbeek. Klarenbeek gave police a statement, but died before the applicant’s trial. In the course of the trial, Detective Constable Karl Pattenden gave evidence that on 28 January 1989 he had shown Klarenbeek a photoboard containing (among several others) the applicant’s photograph, but that Klarenbeek claimed not to recognise anybody in the photographs.

Police traced the ownership of the Ruger back from Klarenbeek to a Noel King, who in turn had purchased it from a Fynus Caldwell. The evidence was that when King sold the rifle to Klarenbeek in October 1988 it was fitted with a telescopic sight and the barrel had been threaded to accommodate a silencer.

Caldwell took police to a place where he had sometimes engaged in target practice and rabbit shooting. Police there located a number of spent .22 calibre cartridge cases. Later, forensic examination by Superintendent Prior — a police officer experienced in ballistics — showed a close resemblance between nine of those cartridge cases and the two cartridge cases that had been found at the murder scene.

Police were also given seven .22 calibre cartridge cases by Klarenbeek, who said that he had recovered them from an area where he had test-fired the Ruger that he had purchased from King. Four of those cartridges were identified by Superintendent Prior as having been fired by firearms other than a Ruger. Of the remaining three cartridge cases, Prior concluded that two were ‘Stirling’ brand and one was a ‘CCI’ brand. Although none of the seven cartridges was PMC brand, Prior formed the opinion that one of the cartridges had been fired from the same rifle that had fired one of the PMC cartridge cases found at the scene of the murder.

Superintendent Prior’s conclusions were supported by other experts, including Special Agent Richard Crum of the United States Federal Bureau of Investigation; by Chief Superintendent Bernard Schecter, the head of the Investigations Department, Division of Identification and Forensic Science of the Israeli National Police; and by Barnes. Despite Prior’s opinion being supported by Barnes — whose evidence on other aspects was criticised in the Martin Report — there seems little doubt that the rifle used to kill Mr Winchester was the rifle that Klarenbeek had acquired through King from Caldwell. Apart from the evidence of an individual, Raymond Webb, however, there was no direct evidence that Klarenbeek had sold the rifle to the applicant.

It is convenient to set out Webb’s evidence by repeating the excellent summary[11] provided in the reasons for judgment of the Full Court on the appeal against conviction:

Mr Webb gave evidence that he had seen an advertisement for the sale of various firearms that had been placed in the Canberra Times by Mr Klarenbeek on Saturday, 31 December 1988. On arrival at Mr Klarenbeek’s house in Queanbeyan that day he was shown several weapons, including a Ruger 10/22 rifle. He noticed that its barrel was threaded so that a silencer could be fitted and that it had a telescopic sight. There were three silencers on the table where Mr Klarenbeek was displaying items which he had for sale. Mr Webb said that as he was leaving Mr Klarenbeek’s premises another person arrived. It was necessary for Mr Webb to turn sideways so that the two men could pass on the pathway without colliding. He said he made eye contact, and the other person was not moving out of the way. He subsequently identified that person as the appellant. Mr Webb said that he returned to Mr Klarenbeek’s house on Thursday, 5 January 1989 and purchased a Tof .22 rifle. He then noted that the Ruger 10/22 was no longer on display. He said that Mr Klarenbeek did not require him to produce any type of licence.
Shortly after the murder, following a television program in which the police appealed for information about Ruger rifles, Mr Webb contacted the police. He told them that he had seen one at Mr Klarenbeek’s house but he made no mention of the man who had arrived as he was leaving, nor did he refer to him when he gave a written statement to the police six months later on 28 August 1989. Much later in the year he saw, so he claimed, the appellant on television and recognised him as the man whom he had seen at Mr Klarenbeek’s house. In evidence-in-chief he said that he had not mentioned the other man when he first spoke to the police as he did not recall the subject being raised. However, he admitted that in his statement of 28 August he had falsely stated that whilst he was at Mr Klarenbeek’s house on 31 December 1988 ‘nobody else came to look at the rifle he had for sale …’. Mr Webb also repeated that statement when giving evidence on oath at the Inquest. He offered, as his explanation, that he did not want to get involved, that he had visited Mr Klarenbeek during his working hours without his employer’s permission and that he was scared for himself and his family. He also assumed that Mr Klarenbeek would have been able to identify the person who had bought the Ruger 10/22 rifle. It was not until sometime late in 1992 that Mr Webb told the police that he had identified the appellant on television some three years or so earlier. ... [12]

[11] So described in the Martin Report [35].

[12] Eastman v The Queen (1997) 76 FCR 9, 16–17.

At trial, the applicant denied having purchased the rifle from Klarenbeek. There was, however, other evidence led by the Crown that pointed to the applicant as having bought the Ruger 10/22 from Klarenbeek. For present purposes, it is unnecessary to set it out.[13]
[13] See ibid 17–19.

Evidence was also led at trial directed to the applicant’s history of employment and dispute with the Australian Public Service (‘APS’), and his adverse reactions to decisions which were not favourable to his attempt to gain re-entry into the APS. There was also evidence concerning the applicant’s history of aggression and violence, and his adverse response to a meeting with the deceased on 16 December 1988.[14] Furthermore, listening devices installed in the applicant’s house had recorded the applicant speaking and whispering to himself, those maunderings allegedly containing admissions of guilt.[15]
[14] Ibid 19–24, 26.
[15] Ibid 30–2.

As we have said, the foregoing is an incomplete summary of the evidence adduced at the applicant’s trial. It is, however, sufficient to set the scene for consideration of the issues raised by the present application.

The Full Court recorded the Director’s submission that the circumstantial case that remained against Mr Eastman turned upon the combination of eight strands of evidence to the effect that Mr Eastman:

•had a strong motive to kill Mr Winchester based on his having been charged, unjustly in his eyes, with assaulting his neighbour, Mr Russo, his frustration and disappointment with the outcome of his meeting with the deceased on 16 December 1988 and his receipt on the morning of the morning [sic] of the murder of the Commissioner’s letter refusing to overturn Mr Winchester’s decision not to intervene in the assault proceedings that were set down for hearing on 12 January 1989;
•had made threats to kill Mr Winchester, among others, to his then solicitor in November or December 1988 and to Dr Roantree as well as having made other threats to kill including in his letter to his German pen friend in December 1987 shortly after being charged with the assault, and had made allegations in January 1989 that the executive in the police was corrupt. In addition, as Martin AJ found, the AFP had good reason to consider Mr Eastman to be a dangerous person because of his record of violent conduct ([1593]);
•after being charged, had sought out and purchased guns in 1988, using a false name, had kept the telescopic sight from the first purchase from Mr Bradshaw when he returned the gun, and so did not subsequently purchase the offered telescopic sights when later buying other weapons, and had lost the use of the weapon he had hidden in the culvert when it was found and handed in to the police in May 1988;
•had the means to kill Mr Winchester because of the evidence that linked Mr Eastman to the Klarenbeek weapon, including the circumstances concerning Mr Klarenbeek’s evidence at the inquest, that could not be led at the trial, that the Full Court discussed in the appeal (Eastman 76 FCR at 79E-80D); Mr Webb’s (very late) proffer of his evidence that identified Mr Eastman arriving at the Klarenbeek residence at about 8.30 am on 31 December 1988; Mr Webb’s evidence of his subsequent discussion with Mr Klarenbeek about the purchaser of the murder weapon not wanting a telescopic sight and the weapon having a silencer, Mr Eastman’s withdrawal of $200 from an ATM on 1 January 1989 and the sighting of a blue car, perhaps eight years old, in Mr Klarenbeek’s street at 2.30 pm the previous day; the attempt of a male, who would not give his name, on 8 January 1989 to sell to Mr Reid a Ruger 10/22 rifle threaded to fit a silencer; Mr Reid’s later positive identification of Mr Eastman after once not having been able to identify him and on a second time doing so only tentatively; a statement by Mrs Klarenbeek tendered to the inquiry that, despite swearing to the inquest that he did not recognise the purchaser when shown a photoboard that included a photograph of Mr Eastman, her husband had told her that he had recognised the photograph of Mr Eastman as that of the purchaser;
•had the opportunity to commit the murder. When interviewed by the police in the presence of his solicitor on the day after the murder, Mr Eastman had said that he had gone for a drive between 8 pm and 10 pm the previous night, but, despite his excellent memory and high intelligence, he implausibly asserted that he could not remember any details of where he had driven;
•was linked to the murder scene by evidence that, on 8 January 1989, a witness saw what she said was a turquoise-bluey-green Mazda 626 sedan parked outside Mr Winchester’s house and that, as she walked past, the driver positioned himself so that he would not be seen and was still there when she returned from her walk. The witness remembered a registration number that had some similarity (two of the letters, but one in a different position, and two of the numbers) to Mr Eastman’s car’s registration and Carruthers AJ relied on this and other evidence to find that Mr Eastman had stalked the deceased’s premises;
•had told, what the Director asserted were, lies indicative of a consciousness of guilt, including his non-recollection on 11 January 1989 of where he had driven on the previous night in the two hours between 8 pm and 10 pm; his denial of ever being in the deceased’s home’s street; his evidence that suggested that, in effect, assaults such as that with which he was charged in respect of Mr Russo were regarded as trivial and would not affect his readmission into the public service when he had told Dr Roantree that, if he had a criminal conviction, it would penalise his ability to be re-employed; his acceptance when giving evidence-in-chief, that he had written correspondence to his German pen friend in an exhibit tendered by the Crown where the exhibit included the December 1987 letter, in which he had made a threat to kill, whereas in cross-examination he initially said that he had not agreed that he had written the December 1987 letter that formed part of the exhibit and then suggested that it had been forged by the AFP, even though a handwriting expert had given unchallenged evidence that the letter was in Mr Eastman’s writing; his false accounts of why he needed to buy guns and then disposed of them and his assertion that he had disposed of the telescopic sight of the Bradshaw rifle in a bin after breaking it because it was already cracked, but then returned the weapon and empty box for the sight to Mr Bradshaw and paid him $20 for the value of the unreturned sight; after the situation with Mr Russo had diffused, his implausible explanation for having left the gun in the culvert without a magazine; and his false denial in the absence of the jury, so the Director contended, of the allegations in the Crown opening that he had purchased any firearms; and
•had made admissions in the recordings set out in the report by Martin AJ at [1793] and reproduced at [86] above.[16]

[16] Eastman v DPP [No 2] (2014) 9 ACTLR 178, 241–3 [216] (citations in original).

The Full Court accepted, as did Martin AJ, that the prosecution case amounted to a strong circumstantial case but was not persuaded that Martin AJ erred in concluding that it was not an overwhelming case.[17] The Full Court did not accept that the eight strands of evidence were so compelling that, as a circumstantial case, the jury must inevitably have convicted on that evidence.[18] Nevertheless, the Full Court regarded the strength of the case against the applicant as a compelling consideration in favour of a retrial.[19]
[17] Ibid 248 [233].
[18] Ibid 250 [242]–[245].
[19] Ibid 264 [299].

There is one further matter of factual background which is important. One line of investigation pursued from shortly after Mr Winchester’s murder concerned the possibility that an organised crime syndicate known as the ‘Ndrangheta, a mafia group typically associated with Calabria in Italy, was responsible. This possibility was the subject of evidence at the coronial inquest in 1990 and was the basis for what was contended to be a reasonable hypothesis consistent with innocence at the applicant’s trial in 1995. It was one of the matters referred to the Martin Inquiry and was dealt with in great detail in the Martin Report, both in the substantive report and in a separate confidential section. In the stay application the issue was generally referred to simply by reference to the expression ‘the alternative hypothesis’.

Overview of the stay application and the Stay Reasons

Prior to the substantive hearing of the stay application, Ashley AJ conducted directions hearings and made a series of rulings on preliminary matters. The substantive hearing of the stay application itself occupied nine sitting days, between 8 and 18 February 2016, with the court sitting extended hours. The transcript of the hearing is 1,250 pages. The Stay Reasons themselves run to 266 pages.

There were seven broad areas of inquiry which Ashley AJ was required to address. They were: prosecutorial misconduct before, during and after the 1995 trial; strength of the Crown case; the effect of delay; the applicant’s personal circumstances; the effect of publicity; the expense of a new trial; and what were said to be changes in the nature of the Crown case.

The applicant’s contentions in relation to prosecutorial misconduct related to pre-trial non-disclosure and police harassment, the conduct of the trial itself, and non-disclosure after the trial. These matters had been dealt with in considerable detail in the Martin Report. Broadly, Martin AJ had found that relevant prosecutorial non-disclosure prior to and during the trial had occurred, but that it had been inadvertent. The applicant contested the conclusion concerning inadvertence and the relevant issues were largely re-litigated. Ashley AJ addressed the re-litigated issues of non-disclosure in very considerable detail, occupying some 150 pages of the Stay Reasons.[20] In substance, having undertaken this very substantial exercise, Ashley AJ reached conclusions which did not relevantly diverge from those of Martin AJ.
[20] Stay Reasons [73]–[516].

Considerable attention was also directed in the Stay Reasons to the issue of the strength of the Crown case, and issues relating to the alternative hypothesis in that context. These issues also occupy a very significant part of the Stay Reasons. Ashley AJ addressed all the matters relied upon by the applicant in considerable detail.[21]
[21] Stay Reasons [517]–[617].

The issues of delay, personal circumstances, publicity, expense of a new trial, and change of the Crown case were all also dealt with separately and in detail by Ashley AJ.[22] The breadth of the matters his Honour was required to deal with should not be lost sight of. The matters raised on the application for leave to appeal were far more confined and, as will become apparent, involve some material refinements of the applicant’s case.

Principles governing the permanent stay of criminal proceedings

[22]Delay was dealt with in the Stay Reasons at [618]–[642], the applicant’s personal circumstances at [643]–[654], adverse publicity at [655]–[674], expense of a new trial at [675]–[690], and change of the Crown case at [691]–[762].

Ashley AJ summarised the relevant principles governing the grant of a permanent stay in criminal proceedings as follows:

(1)A permanent stay of a proceeding may be ordered to prevent an abuse of process. The central question is ‘whether there is a fundamental defect “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences”’.[23]
[23]R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ and Toohey J), their Honours referring to a passage in the judgment of Wilson J in Barton v The Queen (1980) 147 CLR 75, 111.
(2)‘Abuse of process’ encompasses not only circumstances within the narrow conception of that term — such as bringing a proceeding for an improper purpose, or pursuing a proceeding which is foredoomed to fail — but also the prosecution of a criminal proceeding in such a way as to make it unfair, an instrument of oppression.
(3)‘It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition’.[24]
[24]R v Edwards (2009) 255 ALR 399, 406 [33]; (2009) 83 ALJR 717, 723; and see the authorities there cited.
(4)A heavy onus lies upon an applicant for a permanent stay of proceedings to persuade a court to make the order sought. Grant of a permanent stay is a remedy which will only be granted in a rare case,[25] though see the significance of ‘rarity’ as explained in Dupas v The Queen.[26] In a case of alleged unfairness, a court should not order a stay unless it is satisfied that there are no other means, such as by directions of the trial judge, of bringing about a fair trial.[27] So, in Dupas v The Queen, the High Court said this:[28]
[25]R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ, Toohey J); Walton v Gardiner (1993) 177 CLR 378, 392–3 (Mason CJ, Deane and Dawson JJ); R v Edwards (2009) 255 ALR 399, 406 [34].
[26] (2010) 241 CLR 237, 250 [35]. Set out below in this paragraph ...
[27]R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ, Toohey J), cited in Dupas v The Queen (2010) 241 CLR 237, 245 [18].
[28] Dupas v The Queen (2010) 241 CLR 237, 250 [35] (citation omitted).
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
(5)In determining whether an application for a permanent stay of proceedings should succeed:[29]
A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the ‘social imperative’ as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.
What the Court there said calls to mind this observation of Brennan J in Jago v District Court (NSW):[30]
If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law, and whether the legal right of an accused truly stated is a right to a trial as fair as the courts can make it.
(6)The applicant for a stay must establish that the continuation of the proceedings would — not could — involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[31]
(7)Long delay of itself, absent evidence of prejudice to the defendant, is at the least very unlikely to justify grant of a stay.[32]
(8)The absence or loss of evidence, or of potential witnesses, will not justify grant of a stay unless the lost evidence, or what the potential witnesses could have said, was likely to have had a significant effect on the trial. That is so even where the deficiency can be attributed to poor work by the investigating authority.[33]
(9)Even a large amount of very unfavourable pre-trial publicity is extremely unlikely to justify grant of a stay of proceedings, for the reasons explained in Dupas v The Queen.[34]
(10)The making or facilitation of illegal conduct may provide circumstances in which a permanent stay will be granted. Ridgeway v The Queen[35] and Moti v The Queen[36] were cases of that kind.[37]

[29] Dupas v The Queen (2010) 241 CLR 237, 251 [37] (citations omitted).

[30] (1989) 168 CLR 23, 49.

[31]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ), cited in R v Edwards (2009) 255 ALR 399, 403 [23].

[32]Jago v District Court (NSW) (1989) 168 CLR 23; R v Edwards (2009) 255 ALR 399, 406 [34]; R v Birdsall [1997] NSWCCA 66; R v Fleming [2007] NSWSC 337; cf TS v The Queen [2014] NSWCCA 174. See also Ross v Tran (1996) 87 A Crim R 144, where a factor other than delay was held to justify a magistrate’s grant of a stay.

[33]R vSmith [No 1] (2011) 218 A Crim R 52; Buddin J, in a very comprehensive and careful analysis, referred in the present connection, inter alia, to R v Helmling (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, 11 November 1993), R v Tolmie (Unreported, New South Wales Court of Criminal Appeal, Tobias JA, Hulme and Adams JJ, 7 December 1994), R v Hatfield [1999] NSWCCA 340, R v Ulman-Naruniec (2003) 143 A Crim R 531, R v Fleming [2007] NSWSC 337, Gilham v The Queen (2007) 73 NSWLR 308, R v Edwards (2009) 255 ALR 399, Aydin v The Queen (2010) 28 VR 588 and PG v The Queen [2010] VSCA 289. See also R v Goldburg (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Mahoney JA and Abadee J, 23 February 1993), Wells v The Queen [2010] VSCA 100, DPP v Brownlie & Brownlie (a Pseudonym) [No 2] [2015] VSCA 267, and, tangentially but usefully, Audsley v The Queen (2013) 228 A Crim R 98, 107-10 [43]–[55] (Kaye AJA).

[34](2010) 241 CLR 237.

[35] (1995) 184 CLR 19.

[36] (2011) 245 CLR 456.

[37] Stay Reasons [58] (emphasis in original) (citations edited from original).

After referring to further submissions by the parties relating to the authorities, his Honour went on to make two additional observations, the first of which bears on the understanding of the above principles:

It remains to mention two matters. First, it will be appreciated that the principles described at [58](1)–(6) above are of general application, whereas the ·principles described at [58](7)–(10) address particular circumstances. The latter have been developed in proceedings in which the issue was delay, or loss of evidence, or publicity, or illegal conduct, as the case might be. But [the applicant] did not argue that any one of the matters upon which he relied would of itself make out his case for a stay. Because he relied upon a combination of circumstances, it may be said, I think, that authorities dealing with the situation where a particular circumstance was called in aid would not necessarily be decisive against him. On the other hand, authorities dealing with matters such as delay, lost evidence and adverse publicity are applications of the general principles which guide determination of permanent stay applications, and in my view they bear upon [the applicant’s] application.[38]

[38] Ibid [71] (emphasis in original).

No proposed ground of appeal attacks these statements of the law. In our opinion they accurately summarise the principles which his Honour was called upon to apply.

We would wish to emphasise two further matters. The first goes to the fundamental reason why the exercise of the power to stay must be exceptional and the second goes to the particular position of a trial judge who is faced with a pre-trial application for a stay.

The exercise of the power to stay a prosecution must be exceptional because it effectively results in a refusal by the court to exercise jurisdiction and the primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court.[39]
[39]Jago v District Court (NSW) (1989) 168 CLR 23, 61 (Deane J), 76 (Gaudron J) (‘Jago’); R v FJL (2014) 41 VR 572, 575 [17] (Osborn JA, Redlich JA and Sifris AJA agreeing (at 589 [90] and 589 [92] respectively)).

Next, as the judgment of the High Court in Dupas makes clear,[40] there is a distinction between a prospective judgment as to whether a criminal proceeding should be stayed prior to trial and consideration by an appellate court after verdict of the question whether, having regard to the actual course of the evidence and directions at trial, the accused suffered a miscarriage of justice.
[40] Dupas v The Queen (2010) 241 CLR 237, 249 [18]–[19] (‘Dupas’).

The present application fell to be decided at the pre-trial stage and in turn must be reviewed on the basis that the actual course of the evidence which may be adduced at trial and the steps that may be taken to avoid unfair prejudice to the accused are to some material extent uncertain. In these circumstances, the task confronting the applicant was to persuade the trial judge that nevertheless it must be concluded that the trial will necessarily result in an abuse of process.[41]
[41]R v Glennon (1992) 173 CLR 592; Walton v Gardiner (1993) 177 CLR 378, 392; R v Edwards (2009) 255 ALR 399, 403 [23]; Dupas (2010) 241 CLR 237, 250 [35]; Moti v The Queen (2011) 245 CLR 456, 465–6 [15].

The assessment of that eventuality must be conditioned by recognition of the trial judge’s substantial powers to ensure a fair trial and direct juries as to their task of assessing the evidence fairly and in accordance with law:

Whilst the criminal justice system assumes the efficacy of juries, that ‘does not involve the assumption that their decision-making is unaffected by matters of possible prejudice’.[42] In Glennon, Mason CJ and Toohey J recognised that ‘[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial’.[43] What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.[44]

[42] Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J).

[43] (1992) 173 CLR 592, 603. See also Murphy v The Queen (1989) 167 CLR 94, 99.

[44] Dupas (2010) 241 CLR 237, 248–9 [29] (citations in original).

The pre-trial nature of the stay application thus affected the fundamental enquiry which confronted Ashley AJ, namely whether he could at that point be satisfied that apprehended defects in the proposed trial could not be satisfactorily addressed by the trial process.

Principles applicable to an interlocutory appeal

Was the order of Ashley AJ an interlocutory order?

In our opinion, Ashley AJ’s dismissal of the application for a permanent stay was an interlocutory order. The proceeding is continuing and its final outcome is yet to be determined.

The critical question is whether the order made finally disposed of the rights of the parties in the principal proceeding between them.[45] It did not.[46]
[45]Lincul v Corney (1976) 180 CLR 213, 225 (Gibbs J); Bienstein v Bienstein (2003) 195 ALR 225, 230 [25] (McHugh, Kirby and Callinan JJ); Re Luck (2003) 78 ALJR 177.
[46]The order made in terms was ‘That the application by David Harold Eastman for a permanent stay of the proceedings is dismissed.’

It neither precluded the applicant from making a further application for the same relief at a further stage of the hearing, nor resulted in a final disposition of the prosecution.

Moreover, insofar as authority supports the view that the grant of a stay on the basis that a proceeding constitutes an abuse of process comprises an interlocutory order,[47] it follows a fortiori that the refusal of a stay has this character.[48]
[47] Tampion v Anderson (1973) 48 ALJR 11; Re Luck (2003) 78 ALJR 177, 179 [9].
[48]Nona v The Queen [2012] ACTCA 55 [22] (Refshauge J).

In turn, the Court must now consider whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a court of appeal and whether a substantial injustice would result if leave were refused on the assumption that the decision is wrong.

The tests guiding the exercise of the discretion to grant leave to appeal an interlocutory order in a criminal matter were summarised by Penfold J in Miles v The Queen:

The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows:
(a)Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b)Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c)Whether a grant of leave would inappropriately fragment the criminal trial process.
(d)Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.[49]

The discretionary nature of the order in issue

[49] [2013] ACTCA 52 [11].

In Walton v Gardner, Mason CJ, Deane and Dawson JJ said:

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.[50]

[50] (1993) 177 CLR 378, 395–6 (emphasis added) (citation omitted).

In Subramaniam v The Queen,[51] the High Court endorsed the observations of Brennan J in Jago cautioning against too ready a disposition to grant stays and recognising the difficulty in defining the critical concept of unfairness:

The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.[52]

[51] (2004) 79 ALJR 116, 122 [25] (citation in original).

[52] Jago (1989) 168 CLR 23, 50.

The Court continued:

It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed …
Fairness or unfairness has been said to defy ‘analytical definition’ and to ‘involve an undesirably, but unavoidably, large content of essentially intuitive judgment’.[53]

[53]Subramaniam v The Queen (2004) 79 ALJR 116, 122–3 [26]–[27] (emphasis added) (citations omitted).

The discretionary nature of the decision of Ashley AJ limits the basis on which it can now be challenged.[54]
[54] R v Glennon (1992) 173 CLR 592, 600.

In R v Carroll, Gaudron and Gummow JJ said:[55]

The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.[56]

[55] R v Carroll (2002) 213 CLR 635, 657 [73] (citation in original).

[56] House v The King (1936) 55 CLR 499, 505.

The decision whether to refuse or grant a stay in a case such as the present necessarily involves a weighing and balancing of countervailing considerations. Ordinarily a trial judge cannot be said to have erred in circumstances where he or she arrives at a balance which was reasonably open having regard to the facts as a whole. In the absence of some demonstrable specific error, the appellate court will not be able to infer that there has been a failure to exercise the discretion properly unless it is plainly unjust.[57]
[57] House v The King (1936) 55 CLR 499, 505.

In Australian Coal & Shale Employees Federation and Commonwealth, Kitto J stated the principles governing an appeal concerning a discretionary decision:[58]

I shall not repeat the references made in Lovell v Lovell[59] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which the appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists of acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[60]

[58]Australian Coal & Shale Employees Federation and Commonwealth (1953) 94 CLR 621, 627 (citations in original).

[59] (1950) 81 CLR 513, 532–4.

[60] House v The King (1936) 55 CLR 499, 504–5.

These principles have been applied in a number of decisions concerning refusal by a trial judge to grant a stay of a criminal prosecution.[61]

Apprehended bias (Ground 1)

[61]For example, R v H (2002) 132 A Crim R 551; Petroulias v The Queen (2007) 176 A Crim R 302; R v Lipton (2011) 82 NSWLR 123; R v FJL (2014) 41 VR 572; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; Clark (a pseudonym) v The Queen [2016] VSCA 96.

Proposed ground 1 of the application for leave to appeal contends that a fair-minded lay observer might reasonably apprehend that Ashley AJ might not have brought an impartial mind to the resolution of the stay application.

The applicant’s submissions set out what he contends to be the applicable legal principles in six paragraphs. The respondent adopted these paragraphs as representing an accurate summary of the law regarding apprehended bias. The relevant paragraphs (with the authorities cited in square brackets) read as follows:

The High Court has made clear that a judge will be disqualified for apprehended bias if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. [Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).]
That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that the tribunal be independent and impartial.
So important is the principle that even the appearance of departure from it is prohibited, lest the integrity of the judicial system be undermined. The test requires no conclusion about what factors actually influenced the outcome of Ashley AJ’s decision. No attempt need be made to inquire into his Honour’s actual thought processes. The test requires the identification of what it is said might have led his Honour to decide a case other than on its legal and factual merits (step one). There must also be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (step two). [Ebner at [8].]
The test is one of possibilities (real and not remote), not probabilities. [Eastman v The Queen [2015] ACTCA 24 at [30].]
The test involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy to draw. [Ibid, at [1].]
An apprehension of bias may arise on what could be regarded as a fairly low threshold of satisfaction — reasonableness is the element to be stressed. [Kwan v Kang [2003] NSWCA 336 at [82].] The test requires the identification of what might affect the judge's impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand. [Ibid, at [32].]

The respondent submits that there is an additional relevant legal principle, which is that the hypothesised lay observer would, ‘before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment’.[62]
[62]Citing British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 306 [47] (French CJ); Johnson v Johnson (2000) 201 CLR 488, 508–9 [53] (Kirby J).

We adopt the agreed principles set out in the submissions, and the additional relevant legal principle referred to by the respondent. The agreed submissions accurately reflect the authorities cited and, in relevant respects, what was said to be the ‘well settled’ relevant principles governing the issue of apprehended bias set out by the Victorian Court of Appeal in AJH Lawyers Pty Ltd v Careri.[63] There are some additional principles set out by that Court which are also relevant. They are:

(a)When one of the grounds of appeal is apprehended bias, the Court of Appeal needs to deal with that ground first, and, if it is established, remit the matter, even if the Court of Appeal is satisfied that the decision below is correct on the merits.[64]
(b)The relevant apprehension, where apprehended bias is alleged, is an apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she will decide the case adversely to one party.[65]
(c)The perception of a lay observer will not be as informed as the perception of a lawyer but the fictional lay observer is not to be assumed to be ignorant of the dynamics of modern judicial practice and, in particular, that modern judges are not expected to await the end of a case before considering the issues, and that they will often form tentative opinions on matters in issue which may be expressed so as to give counsel the opportunity to deal with them.[66]
(d)There is a line to be drawn between indications of a tentative view and an impermissible indication of pre-judgment. A key factor in determining whether the line has been crossed is the extent to which the views expressed appear final rather than merely tentative.[67]

[63] (2011) 34 VR 236, 241–3 [17]–[25].

[64] Ibid 241 [18].

[65] Ibid 242 [21].

[66] Ibid 243 [23].

[67] Ibid 243 [24].

The test for apprehended bias requires first, the identification of the matter which it is said might lead, or might have led, a judge to decide a case other than on its legal and factual merits, and, second, an articulation of the logical connection between that matter and the feared deviation. In relation to this process the High Court in Michael Wilson & Partners Ltd v Nicholls said:

As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been ‘the crystallisation of that apprehension in a demonstration of actual prejudgment’ impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.[68]

Material relied upon in relation to apprehended bias

[68](2011) 244 CLR 427, 446–7 [67] (Gummow A-CJ, Hayne, Crennan and Bell JJ) (citations omitted).

Somewhat unusually in an application of this kind, almost all of the material relied upon in relation to apprehended bias was drawn from the Stay Reasons.

It was contended that in the Stay Reasons Ashley AJ made, in effect, the following ten statements (the numbers in square brackets refer to paragraph numbers in the Stay Reasons):

(a)after being convicted, the applicant acted vexatiously or improperly in commencing numerous and broad proceedings challenging his murder conviction: [2], [4].
(b)applications made by the applicant and his conduct (via his representatives) in the lead up to and during the stay application proceeding were designed to delay and distract from the stay application, and were unmeritorious or vexatious: [16], [20]–[35], [252]–[253], [385], [502].
(c)the applicant (via his representatives) conducted the stay application itself in a manner that was unnecessarily exhaustive and broad, seeking to combine insignificant matters, some of which were without merit, into a potentially misleading whole: [47].
(d)the applicant’s decision to appeal Ashley AJ’s decisions in Eastman [No 5] and Eastman [No 6]. were designed to delay and distract from the issues, and were unmeritorious or vexatious: [20] (footnote 11), [37] (footnote 18).
(e)the applicant’s reliance (via his representatives) on matters that have been mentioned in previous proceedings since his 1995 conviction, and the raising of matters which have otherwise been known to the applicant for some time, was vexatious or unmeritorious: [47], [229], [385], [520], [602], [607], [608].
(f)the ‘alternative hypothesis’ relied on by the applicant is speculative, fanciful, and ought to be dismissed as a credible explanation for the murder: [9], [16], [521], [522], [602], [605], [607], [611], [612].
(g)the applicant ought to be blamed for the chaotic circumstances of his 1995 trial: [636], [639].
(h)despite being released after serving 19 years following a wrongful conviction, the applicant, now on bail, is at an ‘advantage’: [654]; and
(i)a judicial inquiry into the applicant’s conviction, at least of the scope of the Martin Inquiry, was unnecessary and reflected a loss of perspective: [4], [20] (footnote 10).

We will refer to these complaints as ‘Stay Reasons complaints’.

The applicant also relied upon four additional matters in support of this proposed ground. The applicant’s written submission sets them out as follows (the footnotes to the submissions, which contain submissions themselves, are in square brackets):

(a)comments made by Ashley AJ on 19 November 2015 and 26 November 2015 regarding the confidential section of the Martin Report;
[Transcript, 19 November 2015 at p 13–14 (relating to his Honour’s opinion of how the confidential section of the report and the associated documents are ‘not going to take anyone very far’; p 13, [44], and that the parties who receive the confidential section of the report will be ‘bitterly disappointed’ at its content; p 13, [35]). Transcript, 26 November 2015 at p 86–87.]

(b) the decisions of Eastman v The Queen [No 3]
[[2015] ACTSC 364 [8] — by considering the ‘real question’ whether Martin AJ ought to have received the fresh evidence, when neither party has raised this issue, the impression is gained that Ashley AJ considered that Martin AJ ought not to have received the evidence and thus these circumstances diminish its weight in its capacity to substantiate the alternative hypothesis.]
R v Eastman [No 6]
[[2015] ACTSC 377 [42], [44], and [45].]
(c)transcript of the hearing of 27 January 2016 regarding public interest immunity claims concerning the Trenery Informant;
[Transcript of 27 January 2016 p 27, [28]–[29]; p 28, [3]–[8]; and p 30 [14]–[21].]

(d)comments made in the hearing of the appellant’s application on 5 April 2016 (that his Honour refrain from delivering judgment until outstanding public interest immunity claims were determined).
[Transcript of 5 April 2016, p 1270, [3]–[12]; p 1271 [30]–[44].]

We will refer to these complaints as ‘additional complaints’.

The matters relied upon by the applicant may be divided into the following four categories:

1.Complaints about the way in which Ashley AJ dealt with relevant issues raised by the stay application and which it was necessary for him to address in order to determine the application. Stay Reasons complaints (e), (f), (g) and (h) fall into this category.
2.Complaints about observations made by Ashley AJ in relation to the conduct of the stay application itself. Stay Reasons complaints (b), (c) and (d) and additional complaint (b) fall into this category.
3.Complaints about observations by Ashley AJ as to the history of the matter prior to the stay application. Stay Reasons complaints (a) and (i) fall into this category.
4.Observations by Ashley AJ of a general character in the course of the hearings. Additional complaints (a), (c) and (d) fall into this category.

Submissions

In the applicant’s written submission it was contended that the statements which the judge made meant a fair minded reasonable bystander might conclude that he had formed a ‘pervasive negative view’ about the applicant; his conduct in the 1995 trial; his conduct in custody; and his conduct in relation to the litigation, both generally and in relation to the stay application itself. It was submitted that the Stay Reasons give ‘the impression’ the applicant is vexatious and manipulative.

It was submitted by the applicant that the fact that the judge formed this negative view, despite the applicant’s conviction having been quashed, is ‘telling’.

The applicant submitted that comment made by Ashley AJ to the effect that he considered that arguments had been advanced on the applicant’s behalf regardless of their merit was ‘tantamount to presuming that the arguments advanced were undeserving of serious consideration’.

The applicant submitted that if the judge ‘might have held the views asserted’, the reasonable bystander might apprehend he would not have properly considered the factors militating in favour of, and against, a stay.

In the course of the development of the submissions orally, counsel for the applicant particularly focused upon a statement at [20] of the Stay Reasons where the judge said that prior to the stay application the applicant had vigorously pursued various issues ‘apparently regardless of their individual merit or otherwise’, and upon a statement made at [385] of the Stay Reasons, where, in the course of rejecting a submission by the applicant concerning the evidence of Dr Roantree, the judge said that the matter put seemed very likely to have been a ‘new and intendedly ingenious twist upon an old story, a not uncommon occurrence in the conduct by [the applicant] of his litigation over the years’.

All of the particular complaints concerning the Stay Reasons were separately addressed orally. Whilst they were relied upon individually, counsel for the applicant also emphasised the cumulative impact of all of the aspects of the Stay Reasons upon which the applicant relied. There were no oral submissions addressed to the additional complaints.

The respondent submitted that the statements relied upon had to be read in the context of the full Stay Reasons. The respondent also relied upon expressions of disapproval which the judge had addressed to the Crown, upon a list of assumptions said to be ‘most favourable’ to the applicant which the judge had adopted, and upon the agreed basis upon which the application had been argued to the effect that the judge should not depart from the findings made in the Martin Report without good reason, notwithstanding which many matters dealt with by the Martin Report were re-agitated before the judge without advancing the applicant’s case.

The respondent submitted that the fact that the judge, on the material before him, came to a conclusion regarding the applicant’s conduct, or regarding other matters put on the applicant’s behalf, that was not favourable to the applicant did not indicate apprehended bias.

Insofar as the applicant relied upon comments by the judge during hearings or in rulings made before the delivery of judgment on the stay application, the respondent submitted that the applicant’s failure to object meant that he had waived his right to rely upon any such ground of appeal.

Stay Reasons complaints — the ‘effect’ of passages in the Stay Reasons

All of the Stay Reasons complaints cite specified paragraphs of the Stay Reasons and assert what is said to be the ‘effect’ of what was said. It is necessary to briefly highlight some differences between what is said in the Stay Reasons and what is asserted to be the ‘effect’.

In relation to Stay Reasons complaint (a), it is asserted that the ‘effect’ of the passages relied upon is that the applicant had acted vexatiously or improperly in commencing proceedings challenging his murder conviction. What the judge said was that the processes of appeal and review had been ‘seemingly endless’ and that ‘no less than 19 matters’ were the subject of the Martin Inquiry.

In relation to Stay Reasons complaint (b), it is asserted that the ‘effect’ of the passages relied upon was that the applicant had conducted the stay proceeding in a manner designed to delay and distract and raising issues which were unmeritorious or vexatious. The passages relied upon refer to the application for the removal of Whealy AJ on the basis of bias; to what the judge considered to be a ‘loss of perspective’ by both the applicant and the respondent in the context of which the judge said that the applicant had pursued various issues before the judge could come to the stay application ‘apparently regardless of their individual merit or otherwise’; to an incident during the course of the hearing which the judge considered to be unsatisfactory relating to reliance upon a psychiatric report; to the manner in which objections to the respondent’s proposed reliance upon the statements of deceased witnesses had been dealt with by the applicant and which the judge had considered to be extremely unsatisfactory; and to an article in the Canberra Times which the judge also considered to be extremely unsatisfactory. Reliance is also placed upon a comment made by the judge concerning the ‘mental agility’ of barristers, and upon his analysis of certain of the cross-examination. Reliance is placed upon the observation made by the judge concerning the issue of Dr Roantree’s evidence and what the judge perceived was a variation in the nature of the complaint made on the applicant’s behalf concerning that evidence which he described as a ‘new and intendedly ingenious twist’ upon an old story and which he observed was a ‘not uncommon occurrence’ in the applicant’s litigation. Reliance is also placed upon the judge’s analysis of the assumptions which would need to be made in order to uphold a particular submission of the applicant concerning the evidence of the witness Martz.

In the passages relied upon in relation to Stay Reasons complaint (b) the judge was certainly very critical of the applicant’s conduct in relation to the matters he set out. He did not say that the conduct had been designed to delay or distract but he made it clear that in his view it had had that effect. He did not say issues had been raised vexatiously but he did say that he considered that matters had been raised by the applicant prior to the substantive stay hearing without regard of their merits.

In relation to Stay Reasons complaint (c), it is asserted that the judge in ‘effect’ suggested the applicant’s conduct of the stay application had been unnecessarily exhaustive and broad and that the applicant had sought to combine insignificant matters, some of which were without merit, into a potentially misleading whole. Paragraph [47] of the Stay Reasons is relied upon in which the judge said that the matters relied upon by the applicant had been ‘exhaustively explored’ and in which he recorded the fact that he had not lost sight of the single question requiring determination, being whether the applicant had satisfied him, in the totality of the circumstances, that he should have the relief he seeks. The judge observed that that had been a somewhat difficult task because of a tendency to fasten upon ‘a pinch of this’ and ‘the skerrick of that’ and so build up a picture which might well mislead if one were to ignore the totality of the matter. He also cautioned against what he described as a tendency to think that the sheer number of matters raised by the applicant meant that there was something in the stay application.

In relation to Stay Reasons complaint (d), it is asserted that the judge had made comments to the ‘effect’ that appeals launched by the applicant and subsequently abandoned in R v Eastman [No 5][69] and R v Eastman [No 6][70] had been designed to delay and distract from the issues and were unmeritorious or vexatious. In the passages relied upon the judge criticised both parties for ‘loss of perspective’ (the same passage is relied upon in relation to Stay Reasons complaint (b)) and made observations in relation to his determination that a timetable for the application should be set by the court and not be ‘dictated’ by one or other of the parties, noting in a footnote that the applicant’s appeals had meant that what he intended had not been entirely achieved.
[69] [2015] ACTSC 376 (‘Eastman [No 5]’).
[70] [2015] ACTSC 377 (‘Eastman [No 6]’).

In relation to Stay Reasons complaint (e), it is asserted that the judge made comments to the ‘effect’ that the applicant raising matters mentioned in prior proceedings, or matters otherwise known for some time, had been vexatious or unmeritorious. The judge did not say that that had been vexatious. He did say that some of the matters raised were unmeritorious. In relation to this assertion the applicant relied upon passages also relied upon in relation to Stay Reasons complaints (b) and (c) together with the judge’s assessment of certain cross-examination, and upon an observation that a considerable number of the matters raised by the applicant in the context of analysis of the alternative hypothesis had been repeatedly raised previously, the judge making the observation that the fact that they were repeated did not ‘make them any better than they once were’. Reliance was also again placed upon what the judge said about the submission concerning the evidence of Dr Roantree.

In relation to Stay Reasons complaint (f), it is asserted that the judge made comments to the ‘effect’ that the alternative hypothesis relied upon was speculative, fanciful and ought to be dismissed. The passages relied upon are part of a very detailed analysis which the judge undertook of the alternative hypothesis. The judge eventually determined that as matters stood before him he considered that the alternative hypothesis did not rise above speculation.[71] That particular conclusion was not relied upon in the written submission. The written submission relied upon specified parts of the prior analysis. In the course of oral submissions the conclusion that the alternative hypothesis did not rise above speculation was also referred to in the context of the apprehended bias ground. The only element of the analysis in the passages relied upon where the judge used the word ‘fanciful’ was in relation to an argument concerning what was described as the ‘second Ruger’ which the judge said had ‘fanciful elements to it’. No oral submissions were directed to that particular matter.
[71] Stay Reasons [616].

In relation to Stay Reasons complaint (g), it is asserted that the judge made comments to the ‘effect’ that the applicant ‘ought to be blamed for the chaotic circumstances of his 1995 trial’ and that this is in contrast to the conclusions in the Martin Report at [1780]–[1789]. In the passages relied upon the judge referred to the chaotic circumstances of the 1995 trial and observed that they were circumstances ‘for which [the applicant] bears significant blame’. He also observed that the defence’s failure to properly prepare for the forensic evidence at the trial had been ‘partly due’ to the applicant’s sacking of one of his legal advisers at the time.

In relation to Stay Reasons complaint (h), it is asserted that the judge had described the applicant’s bail as an ‘advantage’ in circumstances where the applicant had been released after serving 19 years following a wrongful conviction. The judge observed, in the context of addressing the relevance of the fact that a return to prison would be difficult for the applicant, that the applicant had ‘had the advantage of a grant of bail after the quashing of his conviction and despite there being an order for a re-trial, a regime which is most uncommon’. He then went on to observe that the quashing of a conviction after such a long period of time was unusual and that that explained the grant of bail.

In relation to Stay Reasons complaint (i), it is asserted that the judge made comments to the ‘effect’ that a judicial inquiry of the scope of the Martin Inquiry had been unnecessary and reflected a loss of perspective. The same passage previously referred to concerning loss of perspective in the litigation was relied upon. The judge’s reference to ‘no less than 19 matters’ having been referred to the Martin Inquiry was also relied upon. Nowhere is it said in the Stay Reasons that the Martin Inquiry was unnecessary or that the Martin Inquiry reflected a loss of perspective.

Analysis of complaints concerning findings on issues raised in the stay application —Stay Reasons complaints (e), (f), (g) and (h)

The complaints made concerning what is said to be the effect of comments made when addressing issues the judge was required to decide, or to at least address, in order to determine the stay application, are unusual in the context of a claim of apprehended bias. This is because apprehended bias is usually concerned with extraneous factors that are said to lead to an apprehension that issues will not be, or were not, determined on their merits. These complaints concern the determinations themselves.

What is said in a judgment may reveal the existence of apprehended bias. The High Court decision in Vakauta v Kelly[72] provides an example. In that case the judge expressed preconceived views in relation to particular witnesses in his judgment, based on his experience in unrelated matters. He had expressed the same preconceived views during the hearing. That extraneous matter (his preconceived views) could have been seen to have influenced his determination of the relevant issues and that appeared from the judgment itself.
[72] (1989) 167 CLR 568.

It is not contended here that the judge had preconceived views in this sense. The relevant complaints concern conclusions which he reached on the material which was before him, on issues he was required to decide. Of course, a judge could express conclusions on issues he or she was required to decide in terms which might give rise to apprehended bias. Counsel for the applicant referred us to what was said to be an example, being a decision of Mildren J in the Supreme Court of the Northern Territory in Brittain v Plochoros.[73] In that case, in the course of a judgment, a magistrate had rejected the evidence of a motor car trader observing that he was ‘the archetypal car salesman … a person not to be trusted’. The magistrate had also made observations in the course of dealing with the claim on issues as to which there was no evidence. The claim of apprehended bias was upheld on the basis of the reference made by the magistrate to what the judge described as ‘irrelevant stereotypes’.[74] This case was, on analysis, another example of the intrusion of preconceived views (the honesty of car salesmen), not unlike the position in Vakauta v Kelly.
[73] (1997) 6 NTLR 136.
[74] Ibid 141.

[279] Mallard (2005) 224 CLR 125, 155 [81] (emphasis added) (citation omitted).

Various cases make clear that the Crown has a duty to disclose material bearing simply on the credit of a prosecution witness,[280] so that convictions have been quashed in circumstances where material significantly bearing on the credit of prosecution witnesses has come to light post-conviction.[281] (The cases also recognise a duty to disclose expert reports which might provide an arguable defence,[282] and to reveal the existence of experiments or tests which have the potential to provide exculpatory evidence or weaken the prosecution case.[283])
[280]For example, R v K (1991) 161 LSJS 135; R v Paraskeva (1982) 76 Cr App Rep 162; R v Garofalo [1999] 2 VR 625 (prior convictions); Grey v The Queen (2001) 184 ALR 593 (‘letter of comfort’); R v Farquharson (2009) 26 VR 410 (pending charges).
[281]R v CPK (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Clarke and Hulme JJ, 21 June 1995); R v Lewis-Hamilton [1998] 1 VR 630; D v Western Australia (2007) 179 A Crim R 377; Greensill v The Queen (2012) 37 VR 257.
[282] See Easterday v The Queen (2003) 143 A Crim R 154.
[283]See Mallard (2005) 224 CLR 125, 156–7 [85]–[86] (Kirby J); H [2004] 2 AC 134, 147 [16] (Lord Bingham of Cornhill); R v Ward (Judith) [1931] 1 WLR 619, 674.

Cooley v Western Australia[284] was a case specifically involving the prosecution’s failure to reveal material relevant to the credibility of an expert witness. The applicant had been convicted of wilful murder. A psychiatrist, ‘Dr ZS’, gave evidence at trial that the applicant had confessed the killing to him. The applicant allegedly told Dr ZS that when he struck the deceased with a knife he intended to kill him, that being the only direct evidence in the case of an intention to kill. At the time of the trial, there were findings by the Medical Registration Board that discredited Dr ZS as a witness (although after the trial the Board’s findings about Dr ZS’s credibility were quashed). The material relating to Dr ZS’s credibility was in the public domain but was not disclosed by the prosecution to the defence. Roberts-Smith JA (with whom Wheeler and Pullin JJA agreed) made it clear that when the Crown (or State) calls an expert witness, the defence is entitled to assume that the witness was one of integrity and credibility. If there was material showing otherwise, it was no answer for the prosecution to assert that the material was in the public domain, or that the defence should have made inquiries which would have revealed it. His Honour said:

Had counsel sought to cross-examine [Dr ZS] on the Medical Board’s findings against him, and if necessary, to prove them, he would have been entitled to do so. Had that material been before the jury, it may well have caused them to have had a reasonable doubt about whether or not the applicant had in fact told [Dr ZS] that when he stabbed the deceased he intended to kill him. Had they reached that point the jury may well not have been able to be satisfied beyond reasonable doubt the applicant did have an intent to kill at the time. That would have resulted in an acquittal on the charge of wilful murder.
In this context, it is not enough for the prosecution to say simply that the information was in the public domain, or that the applicant should have made inquires which would have revealed it. The defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility and that if there was any material showing otherwise, the State would disclose it. The failure of the State to do so deprived the applicant of the opportunity to cross-examine [Dr ZS] on an issue which bore directly on his credibility, in circumstances in which the jury’s assessment of that may have led to a different verdict. There was accordingly a miscarriage of justice. …[285]

[284] (2005) 155 A Crim R 528 (‘Cooley’).

[285] Ibid 543 [66]–[67].

One can find in the authorities statements to the effect that the duty of disclosure is not necessarily confined to matters known to the prosecution, and that, in some circumstances, the prosecution has an obligation to make enquiries to discharge its duty of disclosure.[286] Thus, it has been suggested that the prosecution has a duty to make reasonable enquiries about prior convictions of prosecution witnesses[287] and other matters reflecting materially upon the credibility of prosecution witnesses.[288] Hence, in R v Garofalo, Ormiston JA concluded, ‘by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses’,[289] whether or not any request has been made by the defence for disclosure of such convictions. His Honour formulated a rule with respect to prior convictions as follows:

Consequently, at least for present purposes, the rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility. It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further. Again for present purposes that level of enquiry must be seen as having been necessary, so that, without examining that issue further, the ignorance of both counsel and instructing solicitor was irrelevant in the present case.[290]

[286]For example, AJ v The Queen (2011) 32 VR 614, 620 [22] (Weinberg and Bongiorno JJA); R v Keogh [No 2] [2015] SASC 180 [63] (Blue J).

[287] R v Garofalo [1999] 2 VR 625, 637 [70] (Ormiston JA) (‘Garofalo’).

[288] R v K (1991) 161 LSJS 135, 140 (King CJ) (‘K’).

[289]Garofalo [1999] 2 VR 625, 634 [63]. Tadgell JA hesitated ‘to conclude that a common law duty always and inevitably rests on the Crown to make a general disclosure of all previous convictions of witnesses for the prosecution’, but otherwise agreed with Ormiston JA (626 [1]). Charles JA agreed with Ormiston JA (642 [89]).

[290] Ibid 637 [70] (emphasis added).

In R v K, it seems to have been suggested that the prosecution may be expected to make reasonable enquiries about matters going to the credibility of witnesses for the prosecution, at least where there is something that should have alerted those prosecuting of the need to make enquiries. The appellants in that case were convicted of taking part in the production of a cannabis crop. Following conviction, it came to light that a police officer had formed a suspicion that the principal prosecution witness may have been involved in the production of a different crop in another State, when a tractor belonging to the witness was found at the crop site. There had been insufficient evidence, however, to charge the witness (and no charge was ever laid against him). The police officer’s suspicion, and the information upon which it was based, was not communicated to those conducting the prosecution, and the material therefore was not communicated to the defence. King CJ (with whom Cox and Debelle JJ agreed) thought that the fact that the information had not been conveyed to those conducting the prosecution might not always provide an answer. He observed:

There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware: R v Paraskava (1983) 76 Cr App R 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.
I would feel some doubt whether information as vague and tenuous as that which was in the possession of the investigating officers in this case, would have given rise to the obligation even if it had been communicated to the law officers conducting the prosecution. The mere presence of the truck is but a tenuous link to the crop. Beyond that there was nothing more than the suspicion of a police officer. The events had occurred some eight years before. It is difficult to see how any cross-examination based upon the information would be likely to elicit answers materially affecting the credibility of [the witness].
The fact is, moreover, that the information was not in the possession of the law officers conducting the prosecution. In many cases that would not be an answer. The prosecuting law officers might be expected to make reasonable enquiry of those instructing them as to matters potentially affecting the credibility of witnesses for the prosecution. There are limits, however, to the enquiries which prosecuting officers can be expected to make: R v Collister and Warhurst (1955) 39 Cr App R 100. There seems to be nothing in the present case which ought to have alerted prosecuting officers to the need to make enquiries which would have elicited this information. It is regrettable that the investigating officers did not communicate the information to those conducting the prosecution but it was so vague and tenuous that their omission to do so is understandable. I do not think that the Crown Law officers are to be criticised, in the circumstances of this case, for failure to make the sort of enquiries which would have elicited the information.[291]

[291] K (1991) 161 LSJS 135, 140–1 (emphasis added).

R v Collister and Warhurst,[292] cited by King CJ in the foregoing passage, was a case of demanding money by menaces. In that case the appellants submitted, first, that the prosecution’s principal witness, Jeffries, had a prior conviction for stealing which had not been disclosed to the defence. Secondly, the appellants contended that, in the course of his public examination in bankruptcy, Jeffries had given answers to the Official Receiver who was cross-examining him, admitting that he had on occasions told lies in order to get loans of money and had also admitted that on one occasion he had forged a document. The Court of Criminal Appeal was not satisfied that defending counsel had not been aware of Jeffries’s prior conviction for theft. Hilbery J then went on to say:

If the conviction was disclosed, that was sufficient so far as the police were concerned. The police are not to be expected to examine the records or see whether possibly there exists anywhere in the country any matter which might affect the character of a witness. It is their duty to disclose to the defence, in the way indicated in this court a little while ago (see ante, p. 20), actual convictions of crime standing or, the record of the prosecutor, and we accept it from [counsel for the Crown] that that course was followed in this case. Unless this other matter appearing on the record of Jeffries’ public examination in bankruptcy was such as to destroy the case which Jeffries was asserting against the two appellants, it cannot be said that the fact that it was not used necessarily led to a miscarriage of justice. …[293]

[292] (1955) 39 Cr App R 100 (‘Collister’).

[293] Ibid 104–5 (emphasis added).

The judgment in Collister was delivered in May 1955. When Hilbery J referred to what the court had indicated ‘a little while ago’, he was apparently referring to a Practice Note published by the Court of Criminal Appeal on 31 January 1955.[294] Insofar as King CJ relied upon Collister as supporting the proposition that there are limits ‘to the enquiries which prosecuting officers can be expected to make’, it will be seen that the court in Collister drew on an existing Practice Direction which was concerned solely with the duty of police to produce prior convictions of accused and convicted persons — not witnesses — upon request. Collister has long since been overtaken by more modern approaches to disclosure.
[294] The Practice Direction was in the following terms (emphasis added):

K was cited in R v Forrest,[295] a case upon which the applicant placed a deal of reliance. In Forrest, the appellant was convicted of offences relating to ‘home invasions’. As it transpired, an identifying witness had a history of firearms and drug offences. Although those antecedents — which bore materially on credibility and reliability — were known to the police, they were not disclosed to the Director of Public Prosecutions who, in turn, failed to disclose them to the defence. Section 10A of the Director of Public Prosecutions Act 1991 (SA) imposed a duty on police to disclose to the Director all documentary material collected or created during the course of an investigation which might reasonably be thought to assist the case for either the prosecution or the defence. Kourakis CJ (with whom Kelly and Lovell JJ agreed) observed:

The primary determinant of the extent of the prosecution duty to disclose will be the circumstances known, actually or constructively, by the Office of the Director. A breach of the duty will not easily be justified or excused by a failure on the part of the accused or his or her counsel to request material which should have been disclosed. The standard of legal representation affordable by accused persons will vary and it cannot be the case that the standards of justice will vary accordingly. In this case, the same material which it is claimed should have put the defence on notice should also have put the Director’s Office on notice.
More fundamentally, the Director cannot, as a general proposition rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.[296]

[295] (2016) 125 SASR 319.

[296] Ibid 331 [62]–[63].

Garofalo imposes a positive obligation on the prosecution to make enquiries as to the prior convictions of every proposed Crown witness, and establishes a rule requiring the prosecution to ‘inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility’. Putting prior convictions to one side, however, it seems to us that common law rules generally are concerned with the disclosure of material which has been gathered by police and the prosecution in the course of the investigation process. During that process, material will have been ascertained which may strengthen or weaken the case sought to be made by the prosecution. Fairness dictates that the prosecution must disclose to the defence any information in its possession which may assist the defence, either by undermining the Crown case or by providing exculpatory material. An aspect of that duty requires the prosecution to inquire into information which may affect the credibility of potential Crown witnesses, if there is sound reason to suspect that material exists which might impinge upon credibility or reliability. And again, fairness requires that material gleaned from those inquiries which may cast doubt on the credibility or reliability of those witnesses whose credit is investigated must be disclosed to the defence. That said, the prosecution is under no duty to investigate speculative or tenuous suspicion. To adopt the words of King CJ, the obligation to investigate only arises ‘if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness’.

In the passage from Cooley cited above, the Western Australian Court of Appeal expressed the view that the defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility. So much cannot be gainsaid. But in our view, when it seeks to rely on an expert witness, the prosecution too is entitled to assume that the witness is one of integrity and reliability, unless otherwise apprised of material which might reasonably bear on the reliability and credibility of the witness.[297]
[297]That is particularly so now. Rule 4000 of the Court Procedures Rules 2006 (ACT) picks up div 2.12.1 of the Rules, which, by r 1203, binds an expert witness to the code of conduct set out in sch 1. Clause 1.2 of sch 1 provides:
1.2 General duty to court
(1)An expert witness has a paramount duty to assist the court impartially on matters relevant to the expert's area of expertise.
(2)This paramount duty to the court, overrides any duty to a party to the proceeding or other person retaining the expert.
(3)An expert witness is not an advocate for a party.
See also Court Procedures Act 2004 (ACT) div 8.3.

In the present case, the applicant submitted that it is no trivial matter for ‘a government investigative agency, which holds itself out as having forensic expertise, to withhold information which casts doubt on the reliability and veracity of its expert in a criminal investigation into murder’. As a statement of general principle, one could hardly quibble with it. Indeed, it might be observed that Victoria Police is worthy of censure for not revealing to the AFP information in its possession which bore on Barnes’ credibility and reliability. It is another thing entirely to visit that non-disclosure — and its suggested consequences — on the AFP (and thence the prosecution more widely).

The applicant has failed to provide a sound or convincing reason as to why Barnes — as a purported expert in the field of ballistics — ought not be treated as any other consultant that might be engaged by the prosecution. In our opinion, the fact that he was in the employ of Victoria Police does not alter the position. Barnes, so the available material establishes, was brought in as a consultant by the AFP. Without more, the AFP was entitled to rely upon him as being credible and reliable. None of the AFP members who dealt with Barnes had any idea of his alleged shortcomings, or as to the doubts that were harboured concerning his credibility and reliability. And, certainly, nobody in the prosecution team more widely was aware of material in the possession of Victoria Police bearing on Barnes’ credit.

Even were we persuaded, however, that any want of disclosure by Victoria Police of information relevant to Barnes’ credit might be visited upon ‘the prosecution’, we would not conclude that a permanent stay was warranted as a result. As we have said, Barnes will not be called on the retrial to give evidence relating to GSR. Principally, a permanent stay will be granted where a court concludes that there is nothing a trial judge can do to prevent an unfair trial of an accused person.[298] In circumstances where Barnes’ evidence will effectively be culled from the prosecution case, it can hardly be said that any non-disclosure relevant to his credit now has the potential to result in an unfair trial.
[298] Jago (1989) 168 CLR 23, 34 (Mason CJ), 77–8 (Gaudron J).

Moreover, even accepting for the sake of argument that a stay might be granted ‘where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case’[299] — in the sense that ‘the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree’[300] — such a determination ‘involves performing a “balancing” test that takes into account such factors as the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged’.[301]
[299]R v Maxwell [2011] 1 WLR 1837, 1841 [13] (Dyson JSC); Warren v Attorney General for Jersey [2012] 1 AC 22, 31 [23] (Lord Dyson JSC) (‘Warren’). See also R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 74 (Lord Lowry); R v Latif [1996] 1 WLR 104, 112–13 (Lord Steyn).
[300] Warren [2012] 1 AC 22, 32 [24].
[301]Ibid (citing Andrew L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings, Oxford University Press, 2^nd ed 2008), 132) (emphasis added.).

In the present case, the applicant is charged with a very bad example of a very serious offence. Any non-disclosure of information relevant to Barnes’ credibility and reliability by those concerned directly with the prosecution — AFP and DPP — was ‘inadvertent’,[302] in the sense that — Victoria Police apart — nobody in the prosecution (including the AFP) deliberately engaged in a breach of duty by intentionally withholding from the defence information which any relevant person knew should be disclosed.[303] In those circumstances, this Court’s sense of justice and propriety is not outraged. More to the point, perhaps, there was nothing to compel Ashley AJ to conclude that the retrial of the applicant would unacceptably compromise the moral integrity of the criminal justice system.
[302]Stay Reasons [132], [136], [469], [779]; Martin Report [1120], [1761], [1820]; Eastman v DPP [No 2] (2014) 9 ACTLR 178, 217 [114], 262–3 [291].
[303]Martin Report [1761]; Eastman v DPP [No 2] (2014) 9 ACTLR 178, 217 [114], 262–3 [291].

Before leaving this ground, we should observe that although ground 7(c) — that Ashley AJ erred by ‘misinforming himself of the nature of Mr Barnes’ conduct at the SFSL and the circumstances of his departure from employment with Victoria Police’ — was not abandoned, it was not the subject of oral argument. In written submissions, the applicant had contended that Ashley AJ had misunderstood the importance of internal disciplinary charges laid against Barnes and the circumstances of their withdrawal.[304] It is enough to say in answer to these contentions that, even were they made out, they could not have materially influenced the decision to refuse the stay.
[304] See Stay Reasons [325](4) and (10), [326], [334] and [468].

Ground 7 cannot be upheld and leave to appeal upon it should be refused.

Conclusion

For the foregoing reasons, leave to appeal must be refused.

---

I certify that the preceding 352 numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal (Osborn, Whelan and Priest AJJ).

Associate:

Date:

The Judges of the Queen’s Bench Division have considered the question as to the information and history of accused and convicted persons that should be given to the court, counsel and solicitors by police officers before and after conviction. They have resolved as follows:—

(1) Details of previous convictions must always be supplied by the police to the defending solicitor, or if no solicitor is instructed to defending counsel, on request. The Judges are of opinion that there is no obligation on a police officer to satisfy himself that the prisoner has authorised a statement of previous convictions to be given, as it is clearly within the ordinary authority of solicitor and counsel to obtain this information. In order that the defence may be properly conducted, the prisoner's advisers must know whether they can safely put the prisoner's character in issue.
(2) There is no need for police officers to supply a list of previous convictions to the court before conviction, because the prisoner's previous convictions are always set out in the confidential calendar with which the Judge is supplied by the governor of the gaol, whose duty it is to supply it. The police will, of course, give any information to the governor that he may require to enable him to perform his duty.
(3) A proof of evidence should be prepared by a police officer containing a factual statement of the previous convictions, date of birth if known, education and employment, the date of arrest, whether the prisoner has been on bail and, if previously convicted, the date of his last discharge from prison, if known. It may also contain a short and concise statement as to the prisoner's domestic and family circumstances, his general reputation and associates, and, if it is to be said that he associates with bad characters, the officer giving evidence must be able to speak of this from his own knowledge. This proof may be given either with his brief or at the outset of the case to counsel for the prosecution and to no-one else, as, unless the accused is convicted, it has no relevance. It need not be prepared in two parts. If the accused is convicted, it is to be given to the court and to counsel for the defence, but it will be for counsel for the prosecution in the first place to decide how much of this he asks the officer to prove, while it will, of course, be open to the presiding judge to put any questions he may think fit. The statement should not be handed to the court or to defending counsel until the officer is sworn. It may, by leave of the court, be given to the shorthand writer, who may use it to check his note, but he must only transcribe so much as is given in evidence.

[2016] ACTCA 65

2 December 2016