Eastman v The Queen
[2015] ACTCA 24
•10 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Eastman v The Queen |
Citation: | [2015] ACTCA 24 |
Hearing Date(s): | 14 May 2015 |
DecisionDate: | 10 June 2015 |
Before: | Wigney J, Walmsley and Robinson AJJ |
Decision: | The Court orders that: (1) The appeal is allowed. (2) The order made by Whealy AJ on 24 April 2015 dismissing the appellant’s application that Whealy AJ recuse himself from hearing the appellant’s application that his trial be permanently stayed is set aside. (3) Whealy AJ be disqualified from hearing the appellant’s application that his trial be permanently stayed. |
Category: | Interlocutory application |
Catchwords: | APPEAL – Application for judge to disqualify himself from hearing an application for permanent stay of the accused’s trial – apprehended bias – where apprehended bias claimed to arise from past professional association between judge and witness - whether incorrect test for apprehended bias applied – whether judge should have recused himself on the basis of apprehended bias. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 430(2), 475 |
Cases Cited: | Bienstein v Bienstein (2003) 195 ALR 225 |
Parties: | David Harold Eastman (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr C Boyce SC and Ms L Line (Appellant) Mr M Thangaraj SC and Dr P Dwyer (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 18 of 2015 |
Decision under appeal: | Court: Supreme Court of the Australian Capital Territory Before: Whealy AJ Date of Decision: 24 April 2015 Case Title: R v Eastman (No 2) Citation: [2015] ACTSC 98 |
THE COURT:
The test for a judge to apply in considering an application for disqualification or recusal on the basis of apprehended bias is well settled and relatively easy to state. It is, however, not always easy to apply. It involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy to draw.
This is such a case.
Mr David Harold Eastman is to be re-tried on a charge that he murdered Colin Stanley Winchester who, at the time of his murder, was the Assistant Commissioner of the Australian Federal Police. Mr Eastman was originally convicted of the murder of Mr Winchester in November 1995 after a long, complex and difficult trial. In August 2014, almost 20 years after he was tried and convicted, the conviction was quashed by this Court and a new trial ordered pursuant to s 430(2) of the Crimes Act 1900 (ACT) (Crimes Act). Those orders were made following consideration of a report of a board of inquiry that had been established under Part 20 of the Crimes Act.
Mr Eastman has foreshadowed that he will apply for a permanent stay of his retrial. That application has been listed for hearing before Whealy AJ in July 2015. In April 2015, Mr Eastman applied for Whealy AJ to recuse himself on the basis of apprehended bias. The basis for that application was the past longstanding professional association between Whealy AJ and Mr Michael Adams QC, now the Honourable Justice Adams, a judge of the Supreme Court of New South Wales. For convenience, as was the case in the court below, his Honour will be referred to in these reasons as Mr Adams. Mr Adams was the lead Crown Prosecutor at Mr Eastman’s trial in 1995. His actions as Crown Prosecutor at the trial are to be the focus of one of the grounds of Mr Eastman’s stay application. The professional association between Whealy AJ and Mr Adams is that both served as judges of the Supreme Court of New South Wales for a period of about 12 years from 2000 to 2012.
On 24 April 2015, Whealy AJ handed down a judgment in which he dismissed the recusal application. It is against that judgment that Mr Eastman seeks leave to appeal to this Court.
Background facts
It is unnecessary to go into great detail in relation to Mr Eastman’s original trial and conviction. It is, however, necessary to provide some background, if only to highlight the somewhat extraordinary circumstances of this matter and to put the recusal application in context.
On 10 January 1989, Mr Winchester was shot and killed when alighting from his vehicle near his home in Deakin, a suburb of Canberra. An inquest into Mr Winchester’s death commenced in May 1989 and concluded in December 1991 with an open finding. However, the inquest was reopened in November 1992 for the taking of further evidence. In December 1992, the Coroner committed Mr Eastman to stand trial.
On 29 March 1993, an indictment charging Mr Eastman with murder was filed in the Supreme Court of the Australian Capital Territory. After a number of variations of trial dates, the trial commenced on 2 May 1995 before Carruthers AJ. Mr Adams was the lead Crown Prosecutor. A jury was empanelled on 16 May 1995.
The trial was long and complex. It ran for approximately six months. It was also extremely difficult for all parties concerned. Indeed, in its judgment on Mr Eastman’s appeal against conviction, the Full Court of the Federal Court of Australia said that “[i]t would not be an exaggeration to describe it [the trial] as chaotic”: Eastman v The Queen (1997) 76 FCR 9 at 32. Mr Eastman terminated the retainer of, and frequently changed, legal advisors throughout the course of the trial. For lengthy periods he appeared unrepresented. His behaviour at times during the trial, including at times in front of the jury, was also erratic, if not bizarre.
It is unnecessary to examine in detail the Crown case at trial. Suffice it to say for present purposes that an important, if not critical, aspect of the Crown case was expert opinion evidence that purported to link gunshot residue found at the scene of the crime with gunshot residue found in Mr Eastman’s car. The lead expert witness in this respect was Mr Robert Barnes from the Victorian Forensic Science Laboratory. It will be necessary to return to consider aspects of Mr Barnes’ evidence later in these reasons. It is sufficient now to note that it was the circumstances relating to Mr Barnes and his evidence that led the board of inquiry to find that a substantial miscarriage of justice had occurred in Mr Eastman’s trial.
On 3 November 1995, the jury returned a verdict of guilty. The trial judge imposed a sentence of imprisonment for life. Mr Eastman unsuccessfully appealed his conviction to the Full Court of the Federal Court of Australia and then the High Court of Australia: Eastman v The Queen (1997) 76 FCR 9; Eastman v The Queen (2000) 203 CLR 1.
It is necessary to refer to only two aspects of Mr Eastman’s conviction appeal. First, Mr Adams appeared as lead counsel for the Crown in the Full Court. Second, Mr Eastman sought to lead fresh evidence on appeal in the form of an affidavit from Dr James Wallace, a forensic scientist from the United Kingdom. The Full Court described the contents of Dr Wallace’s affidavit as including “observations as to other possible explanations of the findings of Mr Barnes or attempts to cast doubt on them”: Eastman v The Queen (1997) 76 FCR 9 at 107G. The Crown opposed the leading of fresh evidence from Dr Wallace. The Court refused to admit it.
Dr Wallace’s evidence featured again in the final inquiry into Mr Eastman’s conviction.
The failure of Mr Eastman’s conviction appeal was not, by any means, the end of the matter, at least as far as Mr Eastman was concerned.
In June 2000, Mr Eastman applied for a judicial inquiry into his conviction pursuant to s 475 of the Crimes Act as it then stood. The application was declined. A second application in 2001 was successful and an inquiry was conducted into Mr Eastman’s conviction. The terms of reference of that inquiry, however, were limited to Mr Eastman’s fitness to plead at his trial. That inquiry was plagued by numerous judicial review applications and appeals. In October 2005, Miles CJ reported that there had been no miscarriage of justice arising from issues surrounding Mr Eastman’s fitness to plead. Miles CJ recommended that the Executive take no action. This recommendation was the subject of judicial review proceedings and appeals by Mr Eastman. They were ultimately unsuccessful.
Meanwhile, Mr Eastman applied for a further inquiry under the Crimes Act in February 2005. That application was dismissed, as were various appeals from the dismissal.
Undeterred, Mr Eastman continued to press for a further and more wide-ranging inquiry into his conviction. His perseverance ultimately paid off. On 3 September 2012, Marshall J ordered an inquiry into Mr Eastman’s conviction under Part 20 of the Crimes Act. The terms of reference of the inquiry were extremely broad. The Executive initially appointed Duggan AJ to constitute a board of inquiry, though Duggan AJ subsequently recused himself. He was replaced by Martin AJ. The inquiry conducted by Martin AJ (the Martin Inquiry) took place over a number of months. His Honour took oral and written evidence at public hearings and some private hearings. In the midst of this, the Director of Public Prosecutions commenced judicial review proceedings challenging the orders made by Marshall J and the appointment of Martin AJ to conduct the inquiry. That application was dismissed: Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1.
Whilst the terms of reference of the Martin Inquiry were extremely broad, two matters that became the subject of particular focus were the alleged non-disclosure of documents by the Crown and serious issues concerning the reliability of the expert evidence led at trial, in particular the evidence of Mr Barnes. These two issues were linked because the most important documents said not to have been disclosed related to the integrity, independence and reliability of Mr Barnes and his evidence. A number of witnesses were examined before Martin AJ in relation to these matters. One of the witnesses was Mr Adams.
On 29 May 2014, Martin AJ produced a written report of the inquiry. Martin AJ summarised his opinions and recommendations in the following terms at [8] of the report:
I provide this written Report of the Inquiry pursuant to section 428 of the Act. For reasons explained in this Report, my opinions and recommendations are as follows:
·A substantial miscarriage of justice occurred in the applicant’s trial.
·The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal.
·The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material.
·As a consequence of the substantial miscarriage of justice, the applicant has been in custody for almost 19 years.
·The miscarriage of justice was such that in ordinary circumstances a court of criminal appeal hearing an appeal against conviction soon after the conviction would allow the appeal and order a retrial.
·A retrial is not feasible and would not be fair.
·While I am fairly certain the applicant is guilty of the murder of the deceased, a nagging doubt remains. The case against the applicant based on the admissible and properly tested evidence is not overwhelming; it is properly described as a strong circumstantial case. There is also material pointing to an alternative hypothesis consistent with innocence, the strength of which is unknown.
·Regardless of my view of the case and the applicant’s guilt, the substantial miscarriage of justice suffered by the applicant should not be allowed to stand uncorrected.
·To allow such a miscarriage of justice to stand uncorrected would be contrary to the fundamental principles that guide the administration of justice in Australia and would bring the administration of justice into disrepute. Allowing such a miscarriage of justice to stand uncorrected would severely undermine public confidence in the administration of justice.
·In view of the nature of the miscarriage of justice that has occurred and the period the applicant has spent in custody, and in view of the powers conferred on the Full Court, I do not recommend that the Court confirm the conviction and recommend that the Executive grant a pardon.
·I recommend that the applicant’s conviction on 3 November 1995 for the murder of Colin Stanley Winchester be quashed.
It will be necessary in due course to refer to some specific findings made by Martin AJ in relation to prosecution non-disclosure and Mr Barnes’ evidence.
On 22 August 2014, having considered the report submitted by Martin AJ, the Full Court of this Court quashed Mr Eastman’s conviction: Eastman v Director of Public Prosecutions(ACT) (No 2) (2014) 9 ACTLR 178. Amongst other things, the Full Court found (at [253]) that it would be an affront to justice to permit the conviction of Mr Eastman to stand in light of Martin AJ’s findings, that Mr Eastman’s trial did not observe the requirements of the criminal process in a fundamental respect, and that Mr Eastman lost a fair chance of acquittal. The Full Court ordered a retrial.
The Director of Public Prosecutions has decided to present a further indictment against Mr Eastman in relation to Mr Winchester’s murder. A date for the retrial has not been set. Mr Eastman has foreshadowed that he will be applying for a permanent stay of his trial. He has been directed to file the application on or before 29 June 2015. Whealy AJ has been appointed to hear the stay application, which is listed for hearing to commence on 13 July 2015. It is estimated that the hearing will take two weeks. Whilst directions have been made in relation to the filing of evidence in support of, and in opposition to, the stay application, no evidence had been filed as of the date of the hearing of this application.
On 13 April 2015, Mr Eastman filed an application seeking an order that Whealy AJ recuse himself. That application was supported by an affidavit of Mr Eastman’s solicitor. The evidence in that affidavit related primarily to the longstanding professional association between Whealy AJ and Mr Adams as judges of the Supreme Court of New South Wales. That evidence was and is essentially uncontroversial. The basis for the stay application as articulated in the supporting affidavit is considered later in these reasons.
On 24 April 2015, Whealy AJ dismissed the recusal application.
On 1 May 2015, Mr Eastman filed an application for leave to appeal Whealy AJ’s dismissal of the recusal application. Leave to appeal is necessary because the dismissal of the recusal application is interlocutory in nature: see Division 5.4.2 of the Court Procedure Rules 2006 (ACT).
Leave to appeal
At the hearing of this application, Mr Eastman was granted leave to appeal. Leave was granted because it was concluded that the judgment of the primary judge was attended with sufficient doubt to warrant the grant of leave. The reasons for so concluding will be obvious from the reasons that follow.
Whilst ordinarily an applicant for leave to appeal must also show that substantial injustice will result from a refusal of leave, that is not always the case in relation to recusal applications. As the plurality pointed out in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [86], “an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted, at least if a long and costly trial would be wasted if the judge’s decision were incorrect.” This is such a case.
Apprehended bias - Relevant principles
The relevant principles in relation to apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the followings terms at [6] to [8]:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic 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. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted.)
There are at least three important points that emerge from this summary of the principles. Each of them is potentially relevant to this matter.
First, the question is one of possibilities (real and not remote) not probabilities.
Second, the principle of apprehended bias admits of the possibility of human frailty. What that relevantly may mean in the context of this matter is that the principle admits of the possibility that a fair-minded observer might apprehend that even the most experienced, well-regarded and well-intentioned judge, might not be able to entirely put out of his or her mind, or might be subconsciously influenced by, a matter that might affect their impartiality.
Third, 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.
One of the recognised categories of case in which impartiality of a court may appear to be compromised is where the judge has an association, or direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349 [24]; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 (British American Tobacco Australia Services) at 302 [38]. That may include a witness.
In Johnson v Johnson (2000) 201 CLR 488 (Johnson v Johnson), Kirby J said the following about the attributes of the fictitious bystander (at [53]):
Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.
(Footnotes omitted.)
His Honour also observed (at [53]) that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”: see also British American Tobacco Australia Services at [47] (French CJ).
The plurality in Johnson v Johnson emphasised (at [12]), as an important consideration, the fact that the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: see also Vakauta v Kelly (1988) 13 NSWLR 502 at 527. The reasonableness of any suggested apprehension of bias is to be considered in that context and in the context of ordinary judicial practice: Johnson v Johnson at [13].
The basis of the claim of apprehended bias
In terms of the two step application of the apprehension of bias principle referred to in Ebner, Mr Eastman’s claim of apprehended bias on the part of Whealy AJ can be shortly stated.
The first step, the basis upon which it is contended that Whealy AJ might (or might be perceived to) decide the stay application other than on its legal and factual merits, concerns Whealy AJ’s professional association with Mr Adams. The basic facts in this regard are not in dispute. Mr Adams was appointed a judge of the Supreme Court of New South Wales on 28 July 1998, almost three years after Mr Eastman’s trial. He remains a judge of that court. Whealy AJ was appointed a judge of the Supreme Court of New South Wales on 26 June 2000. He remained a judge of that court until his retirement from that position in 2012. Accordingly, Whealy AJ and Mr Adams served as judges on the same court for about twelve years.
The evidence does not go much beyond that. The extent of the contact between Whealy AJ and Mr Adams, or the nature or closeness of their professional relationship, was not further explored in the evidence, beyond the fact that they both sat as judges of the same Court of Criminal Appeal bench in two cases, one in 2011 and one in 2012. Whilst it may perhaps be concluded that Whealy AJ and Mr Adams had a longstanding professional association, not much more can be concluded about the specific nature of their relationship.
The second step of the inquiry is the identification of a logical connection between the longstanding professional association between Whealy AJ and Mr Adams and the feared or apprehended deviation from deciding the stay application on its merits. Before Whealy AJ, Mr Eastman identified the relevant connection as being that a past member of a court (Whealy AJ) should not sit in judgment on the propriety of the actions of another member of the court (Mr Adams), at least in the particular circumstances of this matter.
The affidavit filed in support of the application for leave to appeal articulates the connection in the following terms at [13]-[14] (largely replicating what was said in the affidavit relied on by Mr Eastman before Whealy AJ):
The ground for recusal is based on the intention of Mr Eastman’s counsel to make submissions at the stay hearing regarding the behaviour of the DPP in the trial of Mr Eastman and subsequent appeals. In considering these submissions, the presiding judge will be required to make a determination regarding the propriety of the conduct of the DPP. As Michael Adams QC, as he then was (now Justice Adams of the NSW Supreme Court), was Senior Counsel at Mr Eastman’s trial, this would inevitably involve a determination of the propriety of Mr Adams’ conduct.
If Mr Adams is called as a witness at the stay application, it will be necessary for the presiding judge in the stay hearing to determine Mr Adams’ credibility as a witness. In any event, the judge hearing the stay application will be asked to assess the evidence given to the Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester by Mr Adams.
This asserted connection needs to be unpacked and its elements closely considered. In particular, it is necessary to closely consider exactly how it is said that Whealy AJ will sit in judgment of Mr Adams, exactly what allegations are, or are likely to be, levelled by Mr Eastman against Mr Adams and why or how the longstanding professional association is said to provide a reasonable basis for the asserted apprehension of bias.
Mr Eastman has foreshadowed that it is likely that he will, at the hearing of the stay application, submit that Mr Adams engaged in prosecutorial misconduct or otherwise failed to comply with his ethical duties as lead Crown Prosecutor at his trial in 1995. It is said that it will, in that context, be necessary for Whealy AJ to consider the veracity, reliability and, indeed, honesty of the evidence given by Mr Adams before the inquiry. It is also suggested that Mr Adams will be a witness at the stay application, Whealy AJ will accordingly be required to assess the honesty and reliability of that evidence. Further consideration needs to be given to each of these matters.
The Martin Inquiry findings concerning non-disclosure and Mr Barnes’ evidence
Mr Eastman’s foreshadowed submissions at the hearing of the stay application need to be considered in the context of the specific findings made by the Martin Inquiry in relation to the Crown’s failure to disclose relevant information and documents and the reliability and integrity of Mr Barnes and his evidence at trial. Close attention must also be given to the specific findings made in relation to the conduct of Mr Adams. That is not to say that Whealy AJ, in considering the stay application, would necessarily be bound by the findings of the Martin Inquiry. It might reasonably be expected, however, that some good reason would need to be demonstrated for departing from those findings, particularly if there is no additional or different evidence tendered on the stay application.
At [1832] of his report, Martin AJ concluded as follows:
The issue of [Mr Eastman’s] guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant [Mr Eastman] was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material. In addition, evidence of inadequacies and flaws in the case file and case work of the key forensic scientists were unknown to everyone involved in the investigation and trial.
The Full Court, in considering Martin AJ’s report, summarised his Honour’s findings and conclusions in relation to the forensic evidence and non-disclosure of documents relating to it in the followings terms (at [91]-[121]):
91.The flawed forensic evidence at the trial that Martin AJ referred to in his conclusion at [1831]-[1838] set out in [11] above consisted mainly of evidence given by Mr Barnes, whom the prosecution had called as an expert witness. His Honour analysed Mr Barnes’ evidence given at trial in great detail in the report. He found that Mr Barnes’ evidence was “crucial in the trial” to the prosecution case and that it had extensive flaws ([1102], [1109]). The prosecution relied on his evidence to establish, scientifically, that there was a definite connection between supposedly unique gunshot residues from the PMC brand ammunition used to kill Mr Winchester found at the murder scene and gunshot residues in the boot of Mr Eastman’s car. Gunshot residue remains on, and can be deposited by, the weapon from which ammunition is fired and the shooter.
92.In essence, Mr Barnes identified the gunshot residue found in the boot of Mr Eastman’s car as being indistinguishable from that found at the crime scene on Mr Winchester’s body, in his car and its vicinity ([316]).
93.Mr Barnes asserted that, when PMC ammunition was fired, gunshot residue associated with its discharge was unique among residues of all of the approximately 150 other .22 ammunition types. He claimed that he had created, scientifically, a database of all known gunshot residues from .22 ammunition available in Australia in 1989. In fact, much of that work had been done by Norbet Strobel, a student who was using the work to prepare his master’s degree thesis ([483]-[484]).
94.Mr Barnes’ evidence was that, based on his expertise, his collection and examination of evidence collected from the murder scene and Mr Eastman’s car, his ammunition database and testing of some of the collected evidence, the gunshot residue found on the deceased, in his car and its vicinity was from PMC ammunition and it could be distinguished from every other possible .22 ammunition’s gunshot residue. Mr Barnes gave evidence that he had also found the unique PMC gunshot residue in material that had been collected by vacuuming Mr Eastman’s car shortly after the murder, from first, inside the boot and, secondly, in lesser quantities, the driver’s seat and its surrounds.
95.Martin AJ correctly found that Mr Barnes’ evidence was critical in connecting Mr Eastman’s car to the scene of the murder ([1114]). His was very powerful, apparently scientific, evidence that the prosecution had put before the jury as probative that there was only one explanation for why the unique PMC gunshot residue, that was indistinguishable from the gunshot residues at the murder scene, was inside the boot of Mr Eastman’s car and, to a lesser extent, its driver’s area.
96.The significance of Mr Barnes’ evidence, and that of other experts related to it, given at the trial cannot be gainsaid. In his sentencing remarks, Carruthers AJ said:
the investigation of Mr. Winchester’s murder involved a prolonged investigation by Australian forensic experts in relation to ballistics (taking as a starting point two PMC .22. cartridge cases located at the murder scene) and in relation to gunshot residues located on the body of the deceased, on the exterior and in the interior of the deceased's Ford, at the murder scene, and in the boot and the interior of the prisoner's Mazda. This forensic investigation obtained powerful support from overseas independent forensic experts retained by the Director of Public Prosecutions to review in certain respects the work carried out by the Australian experts and their expressions of opinion. The overseas experts came from such diverse jurisdictions as the United Kingdom, the United States of America and Israel. This investigation must surely rank as one of the most skilled, sophisticated and determined forensic investigations in the history of criminal investigation in Australia.
The totality of the evidence (including, of course, the forensic evidence) satisfies me that on the evening of 10 January 1989, the prisoner lay in wait for Mr. Winchester to return to his home.
Upon his return the prisoner approached his stationery [sic] car from behind and at almost point blank range, fired two bullets from a rifle into Mr. Winchester's head, killing him instantly. That rifle was a 10/22 Ruger fitted with a silencer and probably a telescopic sight.
After the murder the weapon was placed in the boot of the prisoner's Mazda and he decamped.
The fact that the murder weapon has never been found is of no consequence because the ballistics evidence cogently establishes that the rifle which fired the cartridge cases located at the scene, was the one sold by Mr. Klarenbeek to the prisoner on 31 December 1988. (emphasis added)
97.In the appeal, von Doussa, O’Loughlin and Cooper JJ referred to Mr Barnes and the associated expert evidence in explaining the strength of the prosecution case and in rejecting the attempt by Mr Eastman to lead fresh evidence from Dr Wallace that challenged Mr Barnes’ evidence: Eastman 76 FCR at 28F-30D, 105G-108D, 114E-F. They said (76 FCR at 107F-108C):
Mr Barnes in his evidence had said that some of the primer and propellant material found in the appellant's car and at the murder scene were from the same type of ammunition, that is, PMC brand .22 calibre. Dr Wallace, in paragraph 6 of his affidavit, said that there was ‘associative evidence to support that conclusion’.
The balance of the affidavit contains observations as to other possible explanations of the findings of Mr Barnes or attempts to cast doubt on them. …
Dr Wallace makes no reference to the testing and data accumulated by Mr Barnes which led Mr Barnes to the conclusion that some of the particles found at the murder scene and in the appellant's car were produced by firing through a silencer. The opinion expressed by Dr Wallace as to other explanations also ignores the substantial forensic evidence called from experts from around the world which was corroborative of Mr Barnes' test methodology and the conclusions based on those results.
… In the present case, the bare opinions of Dr Wallace, when considered against the evidence of Mr Barnes, the other substantial forensic evidence called on the trial, and the other circumstantial evidence linking the appellant with the murder weapon and the crime scene, lack the cogency to support a conclusion that the jury would have been likely to entertain a reasonable doubt about the guilt of the appellant if the evidence of Dr Wallace had been before it. (emphasis added)
98.Finally, in explaining their conclusion for dismissing Mr Eastman’s appeal, their Honours said (76 FCR at 114E-F):
in our opinion the Crown case established a very strong circumstantial case against the appellant. Whilst in the appeal he has attacked aspects of the Crown case, the attack did not address the strength of the other aspects of the Crown case, in particular the strength of the forensic evidence about the gunshot residues, and the force of the coincidence of so many strands of evidence that combine to point the finger of guilt at him. (emphasis added)
99.The appeal to the High Court was limited to a ground of appeal concerning whether the Full Court should have considered Mr Eastman’s fitness to plead. The High Court dismissed the appeal: Eastman 203 CLR 1.
100.Martin AJ referred to prosecuting counsel’s repeated emphasis before the jury on the reliability and importance of Mr Barnes’ evidence and found ([1109]):
Counsel ridiculed defence attempts to discredit Mr Barnes and extolled the virtues of Mr Barnes as a leading forensic scientist whose work had been ‘critically examined’ and confirmed and approved by independent overseas experts. These points were made at various stages throughout the prosecutor’s final address. (references omitted)
101.We would add that these features of Mr Barnes’ evidence on which the prosecution relied also impressed the trial judge and the Full Court in the appeal against conviction as the emphasised passages from their reasons above show.
102.Next, Martin AJ noted the well-known and persuasive power of scientific evidence in jury trials and the need for juries to be given careful directions to ensure that they give proper weight to that evidence. He said that there was no suggestion that Carruthers AJ’s directions on this aspect were inadequate, but emphasised that the importance of that evidence to the jury was clear. The trial judge had directed the jury that the evidence of Mr Barnes concerning gunshot residue and his methodology had not been criticised and was supported by overseas experts ([1110]). Martin AJ said that the judge’s sentencing remarks in praise of the quality of the investigation highlighted at [96] above was the best indication as to how the jury was likely to have viewed Mr Barnes’ evidence concerning gunshot residue ([1111]).
103.Martin AJ found that the inadequacies in the forensic evidence uncovered at the inquiry had not been apparent at the trial and that the trial judge had had no reason to doubt its reliability ([1112]).
104.Importantly, the board found that, unknown to the defence, Mr Barnes:
·gave evidence to the inquest that lacked a proper scientific basis ([1113]);
·“gave critical evidence connecting the applicant’s car to the scene of the murder, [and] was far from independent and objective. He regarded himself as a police witness and was biased accordingly” ([1114] emphasis added);
·regularly failed to comply with accepted forensic practice with respect to his case files;
·frequently failed to have his work peer reviewed;
·had disciplinary charges laid against him because of his failures to comply with proper practices (of which the Director was also unaware) ([1115]);
·had had concerns expressed about him and aspects of his work by overseas experts, including the database, and his explanations for perceived anomalies had been not accepted as satisfactory ([1116]);
·himself recognised that there were deficiencies in the database, and that, also unknown to the Director, it had been created by Mr Strobel for his thesis; and
·had begun work on a second database ([1119]).
105.The following are examples of the many serious problems with Mr Barnes’ work that the report discerned with great clarity and thoroughness in nearly 200 pages.
106.Martin AJ found that the evidence was “overwhelming that Mr Barnes lacked independence and was biased in favour of the prosecution”. Had that been disclosed and presented to the jury, Martin AJ found it would have been devastating to Mr Barnes’ credibility. Moreover, as he also found, had the evidence of bias been linked to the facts underlying the disciplinary charges and substantive inadequacies in Mr Barnes’ case files, “the entire complexion of the [prosecution’s] forensic case would have changed dramatically” ([1117]).
107.Martin AJ found that the way in which the prosecution led expert evidence at the trial minimised the chances of the overseas experts straying into criticisms of Mr Barnes or expressing the concerns that they had about his evidence and expertise. He also found that Mr Barnes gave his evidence in a way that was designed to convey the impression that he was a careful and conservative expert who had used methods that were well accepted in the scientific community and said ([578]):
The jury was not told that profiling of GSR and propellant was a ‘novel concept’ or that Mr Barnes was ‘working on the boundaries of forensic science as it existed at that time’ (Ex 195 [133]).
108.One of the crucial problems with Mr Barnes’ use of the database to justify his evidence was that it took no account of the fact that the ammunition manufacturers’ specifications for the components that, after firing, produced gunshot residues could, and did, change at any time ([495]). The prosecution had been told by the FBI expert, Roger Martz, in December 1993 ([503]) that “the chemical make-up of the propellants change all the time”. The notes of the conference with Mr Martz continued:
He said what was used in PMC at one time could be used in Winchester [ammunition] at another time. He said that ammunition changes all the time. He said that what happens is the propellant gets manufactured in one place and is then purchased by ammunition manufacturers. PMC may have used different propellants at different times. (emphasis added)
109.This information was not disclosed to the defence. Other experts, such as the Israeli Professor, Shmuel Zitrin, had told the prosecution in April and May 1994 that he had detected unusual results in some cases from the database, although most seemed to be reliable ([514]). By early December 1994, Prof Zitrin said that, even if Mr Barnes had a satisfactory explanation for the unusual results, that would not resolve his difficulties in relation to Mr Barnes’ conclusions. Prof Zitrin said that his opinion did not accord with Mr Barnes’ strong opinion ([536]-[543]).
110.The professor identified to the prosecutors matters that, he said, undermined the database. He and another Israeli expert, Dr Arie Zeichner, told the prosecution at that time that they had a difficulty with the fact that Mr Barnes was “doing something that is not accepted”. Then on 16 February 1995, Prof Zitrin told the prosecution that if reliance could not be placed on the manufacturer’s specifications as to the propellants’ composition, that fact “must undermine Mr Barnes’ ultimate conclusions” and that one cannot rely upon any given composition of propellant powder. He also expressed his view that some of the anomalies in the database could have been due to contamination from earlier firings of the testing rifle ([535], [550]-[554]). None of this information was disclosed.
111.Martin AJ found that Prof Zitrin was the only expert qualified to deal with the database. He gave evidence at the trial when Mr Eastman was unrepresented and, although his disclosed report referred to “unusual results”, it did not refer to anomalies or problems with the database ([557]).
112.Any uncertainty as to the chemical composition of propellant in any of the types of ammunition used to compile the database had the obvious consequence that, even if the database was prepared using ammunition with the chemical composition available at the time of the murder (and there was no suggestion that it was), if the murder weapon had fired ammunition that had been purchased at an earlier time or times with different chemical compositions for the propellants, the results in the database would not correctly identify the brand used in the murder. There was a lack of any scientific verification or authentication for the database’s assumption that the gunshot residues it attributed to a particular brand at the time Mr Strobel tested ammunition from that brand was in any way reliable as evidence of the composition of gunshot residues from any brand of ammunition that might have been fired through the Klarenbeek weapon before or at the murder so as to leave the residues that were found at the murder scene or in Mr Eastman’s car.
113.Likewise, the mere fact that some of the residues might match could not be conclusive on the question whether they had emanated from the same ammunition or weapon. It followed that PMC gunshot residue from any particular time of manufacture may not have had unique characteristics distinguishing it from other brands and there was no certainty about whether or not other ammunition types could have produced similar gunshot residues. This is the more important because the residues that were found at the scene and in Mr Eastman’s car were not all of a kind.
114.Martin AJ found that the Director had inadvertently failed to disclose to the defence significant information and material that directly and indirectly would have assisted the defence concerning “material relevant to the forensic evidence at the heart of the prosecution case” ([1120]). He found that the independent overseas experts had not fully reviewed Mr Barnes’ work ([1823]) and, unknown to the defence, they had experienced concerns both about him and aspects of his work, including the database, his emotional involvement, his role as an “expert” in too many areas, and their difficulties in cross-referencing his reports with data.
115.His Honour also found that conflicts within forensic records and between records and reports had permeated the entire forensic investigation. The board found that, making due allowance for the lapse of time, Mr Barnes’ explanations to the inquiry for those matters ranged from unsatisfactory to unacceptable ([1121]). Martin AJ then found ([1122]-[1124]):
The provenance of crucial exhibits is either non-existent or highly doubtful.
Fundamental data was not produced prior to trial. In some instances it is apparent that Mr Barnes could not have undertaken the organic analyses upon which he claimed to have based his opinions. In other respects, the contemporaneous accounts strongly suggest that such analyses were not carried out and that Mr Barnes’ report was wrong.
These matters undermine heavily the opinions expressed at trial. Competent cross-examination by a fully informed and prepared counsel would have destroyed Mr Barnes’ credibility and exposed the conflicts, inadequacies and lack of data to support the opinions.
The cumulative effect of those matters leaves no room for doubt that Mr Barnes’ opinion at trial that particles from the Mazda boot were PMC lacked a proper scientific foundation. (emphasis added)
116.Additionally, Martin AJ found that, when Mr Barnes gave evidence to the inquiry, it became apparent that he had assumed that the Mazda was associated with the crime scene as a basis for his opinion that a silencer was used there ([1069]). His Honour analysed the evidence concerning charred and partially burnt propellant (PBP) particles on which Mr Barnes claimed to have relied up to and at the trial. His Honour found significant examples of omissions, inconsistencies and imprecision. At the trial, Mr Barnes had said that, regardless of the type of ammunition fired from a Ruger 10/22 fitted with a silencer, there was a strong likelihood that contaminated, charred, partially burnt propellant from earlier firing(s) would be expelled from the silencer with the next shot. He claimed that he had never experienced this phenomenon except where a silencer was used ([1059]-[1060]).
117.Mr Barnes said in his evidence to the inquiry that there were only two severely charred particles found at the scene, one in Mr Winchester’s hair and the other in his car, that suggested to him that the discharging rifle had been very heavily contaminated. He said that “I couldn’t say on that basis that a silencer was used”. He then tried to justify to Martin AJ his definite evidence at the trial that [a] silencer was used to fire the fatal two shots by referring to the lack of stippling on Mr Winchester. However, as Martin AJ found, Mr Barnes had made no reference to stippling at the trial in the context of the use of the silencer ([1069]-[1071]).
118.His Honour found that there was no evidence at the trial to suggest that a silencer had been attached to the Klarenbeek rifle when its prior owners had used it to fire three brands of ammunition other than PMC. Mr Barnes had assumed that the presence of “rogue” charred particles was explained by the use of a silencer on the Klarenbeek weapon. Martin AJ said that even if a silencer had been used by the prior owners to fire rounds of any of the three particular brands other than PMC, there was no evidence to suggest that the offender had the same silencer as the prior owners so as to cause the “rogue” (i.e. non PMC) particles to be dislodged from the silencer and left at the scene and in Mr Eastman’s Mazda ([1070]-[1074]).
119.Importantly, his Honour found that, accepting that PMC was the ammunition used, at best, the reliable evidence established that the green flattened ball gunshot propellant particles found in the Mazda boot, and one on the front seat, were consistent with PMC and at least 56 other ammunition types, including ammunition that had been sold on 10 February 1988 to Mr Eastman by Mr Bradshaw with the rifle Mr Eastman purchased from him under a false identity. Martin AJ also concluded that the partially burnt propellant particles in the boot were consistent with ammunition that was found with the rifle that Mr Eastman had purchased from Mr Lenaghan three days later that was subsequently found on 1 May 1988 in a culvert on the old Federal Highway ([1125], [1743], [1793]).
120.Moreover, the tests performed by Mr Ross (whose work the board did not criticise) on primer residues found on the front seat of the Mazda, while identifying the one PBP particle consistent with, but not unique to, PMC ammunition also identified other PBP particles that were inconsistent with PMC ([1126]). However, Mr Ross’ discovery of those PBP particles that were on the Mazda’s driver’s seat and inconsistent with PMC ammunition was not disclosed to the defence.
121.Martin AJ found that Mr Barnes’ statement to the jury that there was no evidence of any component inconsistent with PMC on the Mazda’s driver’s seat was misleading ([1010]). This led his Honour to conclude that ([1127], [1128]):
1127. Analysed in this way, it is apparent that the presence of particles in the Mazda would have remained as a piece of circumstantial evidence capable of tending to connect the Mazda to the scene, but in a far less powerful way than the way in which the evidence was presented to the jury.
1128. In essence, there was a failure by the AFP and DPP to comply with the duty of disclosure which was coupled with inadequacies and conflicts within the case file of which the defence were unaware. Similarly, the DPP and the AFP were unaware of those inadequacies and conflicts. Considered in their totality, if a Court of Criminal Appeal was faced with these circumstances, the Court would not hesitate in finding that a miscarriage of justice had occurred. In ordinary circumstances of an appeal soon after a trial, the Court would order a re-trial. Notwithstanding the strength of the circumstantial prosecution case, in view of the integral and critical role of forensic science in the case presented to the jury, and particularly the evidence of Mr Barnes linking the Mazda to the scene of the crime, the Court would not have been in a position to say that no miscarriage of justice had occurred and would have declined to apply the proviso.” (emphasis added.)
It is important to emphasise that, whilst Martin AJ found that the non-disclosure of documents relating to the forensic evidence was serious and gave rise to a significant denial of procedural fairness, his Honour concluded that the non-disclosure was inadvertent. At [1761] his Honour said:
This issue is discussed at length with respect to Paragraph 5 of the Order. That discussion identifies the nature and extent of the information concerning Mr Barnes that was not disclosed by the AFP and/or the DPP in breach of the duty of disclosure. I emphasise my finding that no-one in the AFP or the prosecution deliberately engaged in a breach of duty by intentionally withholding from the defence information which the person knew should be disclosed. Mr Adams accepted that ultimate responsibility lay with him, but given the enormous amount of material with which he was grappling, necessarily Mr Adams relied on others to raise the issue of disclosure with him. Mr Adams and others in the prosecution team adhered to the highest standards of ethical conduct. The failures to disclose were inadvertent and occurred as a result of a combination of circumstances.
In his submissions before Whealy AJ on the recusal application, and in submissions on appeal, Mr Eastman contended that he is not bound by Martin AJ’s finding of inadvertence. Mr Eastman submitted that at the hearing of the stay application he is likely to submit, that the non-disclosure was more than merely inadvertent. It amounted to serious prosecutorial misconduct.
What is more, Mr Eastman has flagged that it is likely that he will argue on his stay application that other aspects of Mr Adams’ conduct as lead prosecutor at the trial amounted to prosecutorial misconduct.
It is necessary to give some further consideration to these claims.
The relevant articulated basis for the stay application
Mr Eastman’s stay application will no doubt raise a number of grounds including, for example, the age of the matter and the length of time he has already spent in jail. Many of the grounds likely to be advanced have nothing whatsoever to do with the conduct of Mr Adams as prosecutor at the earlier trial. It is necessary here to refer only to those grounds that are likely to involve allegations against Mr Adams.
In general terms, Mr Eastman has foreshadowed that it will be argued in support of the stay application that the prosecution generally, and Mr Adams as lead prosecutor specifically, acted unfairly and in a manner that did not accord with the duties of a prosecutor. There is no doubt that prosecutorial misconduct can provide a basis for a stay even where it cannot otherwise be concluded that the trial will be unfair: Moti v The Queen (2011) 245 CLR 456; R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42; R v Latif [1996] 1 AII ER 353.
Mr Eastman’s argument based on the failure to disclose relevant material to the defence has already been adverted to. There could be little doubt, based on the evidence before, and the findings of, the Martin Inquiry, that highly relevant material relating to the independence, integrity and reliability of Mr Barnes and his evidence was not disclosed in accordance with the prosecutorial duty of disclosure. It also seems to have been accepted that Mr Adams was aware of that material. To give but one example, there is no dispute that the prosecution did not provide the defence with a copy of a memorandum of a conference between Mr Adams and Dr Shmuel Zitrin that took place on 9 December 1994. That memorandum recorded, amongst other things, that Dr Zitrin had told Mr Adams that he was of the opinion that some of Mr Barnes’ results were “unusual” and that Mr Barnes’ “strong opinions” were not shared by Dr Zitrin. Dr Zitrin’s opinion was that “Mr Barnes went too far in his conclusions”. This memorandum, and a number of similar ones that recorded discussions concerning Mr Barnes’ reports and opinions, was headed “THIS IS FOR THE PROSECUTION BRIEF ONLY NOT TO BE GIVEN TO THE DEFENCE.”
Whilst Martin AJ found that the non-disclosure was inadvertent, Mr Eastman submitted that, when entertaining the stay application, the court is not bound by that finding. He contended that, given that the ultimate question for the Martin Inquiry was whether there had been a miscarriage of justice such as to raise doubts about Mr Eastman’s conviction, it was unnecessary for the inquiry to address whether the non-disclosure was inadvertent or intentional. As a result, he submitted that the examination of Mr Adams before the inquiry, both by counsel assisting and his own counsel, was more limited than it would have been if the propriety of Mr Adams’ conduct was directly relevant.
It is implicit, if not explicit, in Mr Eastman’s argument that he expects that he will have the opportunity to cross-examine Mr Adams at the hearing of the stay application. It is also implicit in his argument that Mr Eastman, through his counsel, will more forcefully or directly cross-examine Mr Adams concerning his state of mind and involvement in decisions not to disclose certain critical documents. Whilst counsel for Mr Eastman was, perhaps understandably, cautious about how high he put the matter, it was suggested that depending on Mr Adams’ answers in cross-examination, it might well be put to him that the non-disclosure was deliberate on his part; that is, he knew that the material was disclosable and had not been disclosed.
Three points should be made concerning Mr Eastman’s foreshadowed argument based on intentional non-disclosure by Mr Adams.
First, the Crown submitted that, contrary to Mr Eastman’s contention, Mr Adams’ knowledge of and explanation for the non-disclosure was squarely raised before the Martin Inquiry. Mr Adams gave evidence in relation to these matters and was cross-examined by both counsel assisting and Mr Eastman’s counsel. Martin AJ’s findings of inadvertence was a considered finding based on the evidence.
There is undoubtedly some merit in this submission. A fair reading of the report of the Martin Inquiry reveals that Mr Adams’ knowledge concerning the material not disclosed and his explanations for the non-disclosure were explored in detail. Mr Adams’ evidence, which appears at first blush to be entirely plausible, was accepted by Martin AJ.
Second, the Crown has said that its present intention is not to call Mr Adams as a witness on the stay application, or to make him available for cross-examination by Mr Eastman. In response, Mr Eastman has submitted that he would endeavour to persuade the Crown to call Mr Adams, but failing that, he would subpoena and call Mr Adams in his case at the stay application. Whilst such a course might be considered to be somewhat unconventional, if not unusual, even in the context of this case, it is nonetheless a course that is open to Mr Eastman.
Third, Mr Eastman has conceded that, apart from such additional questioning of Mr Adams as may take place at the hearing of the stay application, the evidence concerning non-disclosure at the stay application will most likely be limited to the evidence that was before the inquiry conducted by Martin AJ.
The second substantive argument that Mr Eastman has foreshadowed in relation to the stay application concerns what he is likely to contend was the unfair presentation by Mr Adams of the forensic evidence at trial. There are at least three strands to this argument.
First, Mr Eastman is likely to submit that, having regard to what Mr Adams knew about Mr Barnes and his evidence, he should not have been called by the Crown at Mr Eastman’s trial at all. He contends that the evidence before the inquiry reveals that Mr Adams well knew that senior members of the prosecution team had serious doubts or misgivings about the independence and integrity of Mr Barnes as an expert witness. Mr Adams also knew that highly qualified experts from overseas had expressed concerns or doubts about aspects of Mr Barnes’ testing and analysis of the gunshot residue. In the circumstances, Mr Eastman submitted that Mr Adams, as lead prosecutor, should not have called Mr Barnes.
Second, Mr Eastman is likely to submit that Mr Adams, as lead prosecutor, led the evidence from Mr Barnes and the other overseas experts in a way that was unfair and in breach of his duties as a prosecutor. As already adverted to, the overseas experts had expressed doubts and concerns to members of the prosecution team, including Mr Adams, about Mr Barnes’ tests and analysis, including his compilation of a database that was essential to his analysis. Notwithstanding this, Mr Eastman submitted that Mr Adams did not adduce evidence from any of the overseas experts in relation to any of their doubts or concerns.
In at least one instance, being the evidence of Dr Zitrin, in Mr Eastman’s submission the evidence was led in such a way that Dr Zitrin was asked to assume that Mr Barnes had “done the technical work properly”, despite the fact that Dr Zitrin had privately expressed concerns about that very matter. In this respect, Mr Eastman relied on a memorandum that recorded discussions that took place during a conference between Mr Adams and Dr Zitrin. This memorandum recorded Dr Zitrin’s concerns about Mr Barnes’ analysis. It was not disclosed to the defence.
The situation was made all the worse, in Mr Eastman’s submission, given that some of the evidence was led at a time when Mr Eastman was unrepresented and in circumstances where it was reasonable to expect that he would not, or would not be able to, properly cross-examine the expert witnesses. It was also known that documents revealing the concerns relating to Mr Barnes had not been disclosed to the defence.
Third, Mr Eastman has foreshadowed that it is likely to be submitted that, given what Mr Adams knew about Mr Barnes, and the concerns and misgivings that had been expressed concerning his independence, integrity and the reliability of aspects of his evidence, Mr Adams’ closing address to the jury was unfair. Mr Eastman points, in particular, to parts of Mr Adams’ closing address, where he put to the jury that a “battery” of international experts supported Mr Barnes’ opinions, that there were no concerns relating to Mr Barnes’ database, and that because there had been no cross-examination of Mr Barnes concerning any of the matters referred to in Dr Zitrin’s evidence, the jury could take it that there was no material difference, contradiction or qualification of the opinion evidence.
In relation to these arguments, Mr Eastman relies on well-known authorities that establish that a Crown Prosecutor has a duty not to present a case to the jury that is unfair, or has the real potential to mislead the jury: Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; Bugeja v R (2010) 30 VR 493 at [58], [60]. He submits that Mr Adams’ breach of this duty was all the more serious given that the trial was a murder trial, involved highly complex scientific evidence and at critical times Mr Eastman was unrepresented.
Four points need to be made in relation to these foreshadowed submissions.
First, the evidence to be relied on is again essentially the evidence that was before Martin AJ at the inquiry. The only additional evidence will be such evidence, if any, as is elicited from Mr Adams at the hearing of the stay application.
Second, Martin AJ did make some observations that may provide some support for these proposed submissions. His Honour ultimately found, however, that Mr Adams did not behave in any manner that was inappropriate. At [576]-[578], Martin AJ concluded as follows:
During cross-examination Mr Adams was asked about endeavouring to find a way in which two experts called for the prosecution would not be in conflict. Mr Adams accepted that he would endeavour to do so, but only ‘conscientiously’ (Inq 2965). Again with emphasis, Mr Adams said he would never attempt to censor anything said by the experts (Inq 3012).
Mr Adams did not behave in any manner that was inappropriate. It needs to be noted, however, that the way in which the evidence was led minimised the chances of the overseas experts straying into criticisms of Dr Barnes or expressing their concerns.
Similarly, Mr Barnes gave evidence in a way that was designed to convey the impression that he was a careful and conservative expert who had used methods that were well accepted in the scientific community. The jury was not told that profiling of GSR and propellant was a ‘novel concept’ or that Mr Barnes was ‘working on the boundaries of forensic science as it existed at that time’ (Ex 195 [133]).
Mr Eastman foreshadowed that he will seek to cross-examine Mr Adams at the hearing of the stay application in relation to this aspect of Mr Adams’ conduct. He is likely to submit that Martin AJ was wrong to find that Mr Adams did not act inappropriately in the way the expert evidence was put to the jury. He says it is likely that he will submit that there was deliberate prosecutorial misconduct by Mr Adams in this regard.
In oral submissions at the hearing of the appeal, however, Mr Eastman, through his counsel, retreated slightly from this submission. At one stage in oral submissions, it was put that there was “perhaps” prosecutorial misconduct. At another stage, counsel said that he “float[ed] the possibility” that the misconduct was intentional, or that there was at least a prima facie case which would warrant an investigation of what Mr Adams’ state of mind was.
Mr Eastman’s counsel’s caution in the way he put Mr Eastman’s case in his oral submissions was perhaps warranted. He candidly conceded that he had not, at this stage, considered all of the material relevant to this point. It may be accepted that there is a very large volume of material to be considered. There may also be further material produced on subpoena. Counsel also accepted that much will depend on Mr Adams’ evidence if and when he is called as a witness at the hearing of the stay application.
In this regard, it was submitted that any examination, or cross-examination, of Mr Adams in respect of this issue at the hearing of the stay application is expected to go well beyond the questioning on this topic that took place before the Martin Inquiry. The question of the fairness of the presentation of the expert evidence at trial was not, it was submitted, squarely within the terms of reference of the Martin Inquiry. In these circumstances, it was never directly put to Mr Adams that he unfairly presented the forensic evidence at trial.
Third, at the hearing of the appeal Mr Eastman relied on a considerable body of material in support of this submission. That material included the undisclosed documents that recorded misgivings concerning Mr Barnes and his evidence, extracts from the trial transcript, including the evidence of Dr Zitrin, extracts from Mr Adams’ closing address to the jury and extracts from the cross-examination of Mr Adams before the inquiry.
It is neither necessary nor desirable to deal at length in these reasons with the material relied upon by Mr Eastman in relation to this aspect of the matter. In circumstances where these arguments are likely to be put in support of the stay application, it would be inappropriate for this Court, in the context of this appeal, to express any view, opinion, or even observation, about the strength or weakness of these arguments. It is sufficient to say that the arguments, based on the material currently at hand, do not appear to be fanciful, colourable or vexatious.
Fourth, the Crown takes issue with Mr Eastman’s submission that these matters were not squarely ventilated during the Martin Inquiry. The Crown submitted that Mr Eastman was represented by experienced counsel at the inquiry and had the opportunity to cross-examine Mr Adams. To the extent that the foreshadowed propositions concerning the propriety of Mr Adams’ conduct at the trial were not put to him by counsel for Mr Eastman during cross-examination of Mr Adams, it may be inferred that counsel had formed the view that such propositions were not open on the material. The Crown submitted, in short, that Mr Eastman has had the opportunity to put these matters to Mr Adams at the inquiry and to persuade Martin AJ that Mr Adams had acted improperly. He failed to do so. It is, in the Crown’s submission, fanciful to suggest that a different finding will be made in the context of the stay application.
There would again appear to be some merit in the Crown’s submission that this issue was considered by the Martin Inquiry. Beyond that, however, for the reasons already given, it is undesirable for the Court, in the context of this appeal, to delve into the merits of the submissions that have been foreshadowed as being at least likely to be advanced at the stay application. The Crown’s submission that there is no reason to depart from the findings of Martin AJ may turn out to have considerable merit. It may be that any further evidence elicited from Mr Adams at the hearing of the stay application does not assist Mr Eastman. At this stage, however, it is sufficient to say that it is at least open to Mr Eastman to advance these submissions and that they do not appear to be hopeless or fanciful.
Finally, it should be noted that Mr Eastman has foreshadowed making a further submission concerning Mr Adams’ conduct in support of his stay application. That foreshadowed submission relates to the propriety to Mr Adams’ conduct as lead counsel in Mr Eastman’s conviction appeal before the Full Court of the Federal Court of Australia. Relevantly, Mr Eastman submitted that, having regard to what Mr Adams knew about Mr Barnes and his evidence, it was improper for Mr Adams to object to the receipt on appeal of fresh evidence from Dr Wallace which directly went to the reliability of Mr Barnes’ evidence. It was also submitted that the duty of disclosure is a continuing duty. In Mr Eastman’s submission, when confronted by the application to lead fresh evidence on appeal from Dr Wallace, Mr Adams should again have given consideration to his disclosure obligations. In this context, it was submitted that Mr Adams could hardly have forgotten about the information he was aware of concerning Mr Barnes. If he had, his recollection should have been prompted when this issue arose again on appeal.
Mr Eastman did not raise this argument before Whealy AJ. At the hearing of his application for leave to appeal from Whealy AJ’s judgment, Mr Eastman sought to lead additional evidence in support of this argument. No notice of this application, or the additional evidence the subject of it, was given to the Crown. The evidence was provisionally admitted subject to the Crown being permitted to file written submissions in relation to the reception of this evidence.
The Crown subsequently filed written submissions objecting to the additional evidence. It submitted, amongst other things, that no adequate explanation had been given for why this material was not tendered before Whealy AJ. This material had been before the Martin Inquiry and had no doubt been considered in that context by Mr Eastman’s counsel. The Crown also submitted that the additional material did not significantly advance Mr Eastman’s foreshadowed arguments concerning Mr Adams’ conduct. The suggestion that the application to lead fresh evidence from Dr Wallace on the conviction appeal should have triggered some memory on the part of Mr Adams relevant to his continuing disclosure obligations was, in the Crown’s submissions, without any merit.
The Crown’s submissions in opposition to the receipt of this additional material should be upheld. The material is not admitted into evidence on this application for leave to appeal. No adequate explanation has been given for why it was not relied upon before Whealy AJ. Ordinarily further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing: CDJ v VAJ (1998) 197 CLR 172 at [114], [116], [160]; Hillier v The Queen (2008) 1 ACTLR 235. The relevant additional evidence here was plainly available at the time of the hearing before Whealy AJ. It is not enough for Mr Eastman’s new counsel to simply assert, from the bar table, that he had not read and considered all the available material at the time of the hearing before Whealy AJ.
In any event, the additional material does not significantly advance Mr Eastman’s available arguments in relation to apprehended bias. That is, of course, not to say that Mr Eastman cannot seek to advance arguments based on this material at the hearing of the stay application.
The judgment of Whealy AJ
Whealy AJ dismissed Mr Eastman’s recusal application.
At [22] to [24], his Honour set out the relevant principles in relation to apprehended bias. Mr Eastman does not submit that Whealy AJ’s statement of the relevant principles in this part of his judgment is in any way erroneous or deficient. His Honour clearly states that the test is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question that he or she is required to decide. That is plainly a correct statement of the test. Mr Eastman does not contend otherwise.
Whealy AJ then addressed his attention to the two steps referred to in Ebner.
In relation to the first step, Whealy AJ acknowledged that he served on the New South Wales Supreme Court with Mr Adams for a number of years. His Honour said that the Supreme Court is a large institution with approximately forty-eight judges, that there are nine judges of the Court of Appeal, that there are two main divisions, the Common Law and Equity Divisions, and that he was in the Common Law Division until 2010 when he began to serve on the Court of Appeal. Whilst these latter matters were not the subject of evidence, they may be taken to be matters of common knowledge in respect of which judicial notice can be taken pursuant to s 144 of the Evidence Act 2011 (ACT).
At [27], Whealy AJ refers to the fairly limited evidence concerning his “working relationship” with Mr Adams. He points out, correctly, that the evidence was limited to establishing that he had sat on two appeals with Mr Adams, as part of a bench of three judges. His Honour points out that this was at a stage when he was on the Court of Appeal. His Honour does not state, as a matter of judicial notice or otherwise, what division of the court Mr Adams was in. If, like Whealy AJ, Mr Adams was in the Common Law Division, Whealy AJ does not say how many judges were in that division, as opposed to the total number of forty-eight judges referred to by his Honour.
Whealy AJ then addressed the second step in Ebner at [28] of his judgment, where his Honour said:
In relation to the second question – and indeed bearing on the first, as I have said – is the fact that three years have passed since my retirement. More significantly is the fact that the enquiry into Mr Adams’ propriety has no connection with his work as a Judge of the Supreme Court. It is confined entirely to his role as a Crown Prosecutor in the Eastman trial. It relates to events that occurred in 1992 to 1995, a number of years before his appointment to the NSW Supreme Court.
Thus, his Honour focused on two facts which he considered relevant to whether there was a logical connection between his professional association with Mr Adams and the feared deviation from the course of deciding the stay application on the merits. The first was that he had retired from the Supreme Court three years ago. The significance of this was presumably that Whealy AJ no longer had a direct connection with the Supreme Court and was therefore no longer in a direct professional relationship with Mr Adams. The second fact was that the alleged misconduct or impropriety on the part of Mr Adams occurred before his appointment to the Supreme Court and therefore had no connection with his work as a judge.
His Honour appeared to consider that these two factors meant that any apprehension held by a fair-minded lay observer would not be reasonable, or that any such apprehension would not have any reasonable basis. His Honour concluded (at [29]):
In all these circumstances, I am satisfied that a fair-minded lay observer would have no reasonable apprehension that I would fail to bring an impartial mind to the resolution of the issues identified in the present application.
(Emphasis in original.)
As for the specific connection articulated by Mr Eastman, namely that Whealy AJ, as a past member of the Supreme Court, should not “sit in judgment on the propriety” of a judge of that court, Whealy AJ found (at [31]) that “[t]here is no rule of practice or legal authority which dictates a consequence of this breadth.”
Submissions
Mr Eastman’s draft notice of appeal includes a single ground of appeal in the following terms:
His Honour erred in finding that a fair-minded lay observer would have no reasonable apprehension that his Honour would fail to bring an impartial mind to the applicant’s matter.
This ground is plainly directed at the terms in which his Honour expressed his conclusion at [29] of the judgment.
Mr Eastman submitted that whilst his Honour correctly set out the test that he was required to apply, he in fact applied the wrong test in [29] of the judgment. He pointed out that whilst the test for apprehended bias is expressed in terms of possibilities, his Honour’s conclusion is expressed in terms of actualities. That is, when Whealy AJ came to apply the test to the facts of the case, his conclusion is not expressed in terms of whether a lay observer “might” have an apprehension, but in terms of whether the observer “would” have a reasonable basis for apprehending bias. More significantly, Mr Eastman pointed out that his Honour’s conclusion is expressed in terms of an apprehension that he “would” fail to bring an impartial mind to the matter, not to whether he “might” not bring an impartial mind to the matter.
Mr Eastman also submitted that his Honour’s conclusion was unreasonable and not open on the evidence. In effect, he submitted that the circumstances compelled his Honour to find that a reasonable lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the stay application. He emphasised the gravity of the allegations likely to be levelled against Mr Adams and the possibility that the reasonable observer might, at the very least, consider that Whealy AJ might subconsciously be disinclined to accept that Mr Adams acted improperly given his past professional association with Mr Adams.
The Crown submitted that [29] of Whealy AJ’s judgment, when read fairly and in context, does not amount to the misapplication of the test for apprehended bias. It pointed out that his Honour correctly states the relevant test at [22] of his judgment and that, given his Honour’s experience as a judge, it should not in these circumstances be lightly inferred that his Honour failed to apply the very test he earlier correctly stated. It relied, in this regard on the dicta of James J in R v Bui [2008] NSWCCA 297.
The Crown also relied on the decision of the High Court in Bienstein v Bienstein (2003) 195 ALR 225 (Bienstein v Bienstein). In that matter, the High Court upheld a judgment of Hayne J not to recuse himself in circumstances where his Honour expressed his conclusion in terms which, in the Crown’s submission, were not dissimilar to the terms in which Whealy AJ expressed his conclusion at [29] of the judgment.
As for Mr Eastman’s submission that Whealy AJ’s refusal to recuse himself was not open on the evidence, the Crown emphasised that the reasonable lay observer would know that Whealy AJ was an extremely experienced judge, that the relationship between Whealy AJ and Mr Adams was no more than a professional relationship and that, in any event, Mr Eastman has not suggested any basis for an assertion of wrongdoing on the part of Mr Adams that was not known to Martin AJ in the course of the inquiry.
The Crown submitted that this case was in some ways analogous to the matter of Bienstein v Bienstein. It also emphasised the important principle that judges should not too readily accede to suggestions of the appearance of bias lest it encourage “judge shopping”: cf. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J).
Did the primary judge apply the wrong test?
There is no doubt that, at [22] of his judgment, Whealy AJ correctly stated the relevant test for apprehended bias. It may also be accepted that his Honour’s conclusion in [29] must be read fairly and in context. It should not be lightly inferred that, whilst his Honour initially posed the correct question, he in fact answered a different one. Regrettably, however, it is not possible to read the conclusion in [29] in any other way.
His Honour’s conclusion in [29] is directed at the reasonableness of any apprehension that a fair-minded lay observer might entertain. His Honour concludes, in emphatic terms, that any such apprehension would not be reasonable. Thus, even if the observer “might” have an apprehension, it would not be reasonable. The difficulty, however, is that his Honour addresses the relevant apprehension as being that he “would” fail to bring an impartial mind to the matter. His Honour was required to consider the reasonableness of any apprehension that he “might” not bring an impartial mind to the matter. It is the second “would” in his Honour’s conclusion at [29] that is the problem.
The conclusion that his Honour approached the matter in terms of probabilities, or even actualities, instead of possibilities, as he was required to do, is fortified by a consideration of the balance of his Honour’s reasoning. In particular, his Honour appears to have given little or no weight to the nature, let alone the gravity, of the allegations likely to be levelled against Mr Adams in the course of the stay application. His Honour appears not to have considered that, as was said in Ebner, the principle admits of the “possibility of human frailty.” His Honour appears to have ignored, or given no weight to, the possibility that a reasonable bystander might think that it would be difficult for him to avoid being subconsciously influenced by his longstanding professional association with Mr Adams into accepting Mr Adams’ account of his actions in the evidence given before the Martin Inquiry, or in any evidence he might give at the hearing of the stay application.
With respect to his Honour, the fact that the allegations related to Mr Adams’ actions as a prosecutor, not a judge, was alone not capable of dispelling this possibility. That is because the issues before Whealy AJ are likely to include whether he should accept Mr Adams’ explanation for his conduct given at a time when Mr Adams was a judge – either in evidence before Martin AJ, or in evidence at the hearing of the stay application. It is also difficult to see how the mere fact that Whealy AJ is no longer a judge of the same court is capable of dispelling this possibility.
Whealy AJ did not in terms, apply the correct test. Nor does his Honour’s somewhat sparse reasoning suggest that this is merely an issue of words or verbal formula, such that the misapplication of the test is in some way immaterial. His Honour erroneously considered the matter in terms of probabilities, if not actualities. In this case, the existence of possibilities plainly matters.
Is the test for apprehended bias satisfied?
Given that his Honour erred in applying the test for apprehended bias, the next question is whether Whealy AJ should have disqualified himself. Is the test for apprehended bias made out in all the circumstances of this case?
In the particular circumstances of this case, it must be accepted that there is at least a possibility, if not a likelihood, that the judge hearing the stay application will be called upon to consider whether Mr Adams engaged in deliberate or contumacious prosecutorial misconduct, or otherwise breached his ethical obligations. That will require the judge to consider the honesty and reliability of Mr Adams’ evidence concerning his actions before and at Mr Eastman’s trial. That will include the evidence given by Mr Adams in 2014 before Martin AJ. It is also likely, or at least possible, to include evidence given by Mr Adams in the course of the stay application.
Despite the rather sparse evidence of the nature and extent of the professional contact and working relationship between Whealy AJ and Mr Adams, a fair-minded and reasonably well-informed bystander is likely to draw at least some conclusions from the fact that Whealy AJ and Mr Adams served on the same court for many years. It would be reasonable to infer that their professional contact was not limited to the two appeal cases. They were at least likely to have interacted, at least on a professional basis, in other ways. It would be reasonable for the bystander to infer that they interacted at meetings, conferences and perhaps even some court related social functions. The reasonable bystander may well infer that, at the very least, Whealy AJ knew Mr Adams fairly well and would have developed at least some collegiate sentiment towards him. It is unlikely that the sentiment would have dissipated significantly simply because Whealy AJ had left the court in 2012.
There is little doubt that a fair-minded bystander would have regard to the fact that Whealy AJ is a professional and highly experienced judge who would undoubtedly do everything he could consciously do to act impartially. That would include ignoring or discarding as irrelevant his relationship with Mr Adams. But the bystander can also have regard to human frailty and the possibility, at least, that Whealy AJ might subconsciously be influenced by his longstanding professional association with Mr Adams as judges of the same court.
This is also where the gravity of the allegations against Mr Adams must be factored into the equation. If the allegations to be levelled against Mr Adams amounted to nothing more than errors of judgment, perhaps even serious errors of judgment, there may be no real issue. At the Martin Inquiry, Mr Adams appears to have accepted, in hindsight, that he may have made some errors of judgment in relation to disclosure. In complex and difficult trials as this trial undoubtedly was, errors of judgment are frequently made by even the most careful and experienced prosecutors. Likewise, even the most careful and experienced trial judges can make mistakes or errors of judgment in the course of a trial. Appeal judges are frequently called upon to consider mistakes or inadvertent errors allegedly made by other judges, including judges in the same court. It is unlikely that a fair-minded bystander would, or even might, entertain any reasonable apprehensions about a judge being called upon to consider such errors of judgment.
But here, serious and contumacious ethical breaches are likely to be alleged, and the honesty and reliability of the explanations that have been, or will be advanced in evidence in relation to those allegations are likely to be the subject of challenge. In these circumstances, it is difficult to see how a fair-minded bystander might not reasonably apprehend that Whealy AJ, despite his experience and his very best endeavours, might not be subconsciously influenced by his longstanding professional association with Mr Adams. The bystander might not reasonably apprehend that Whealy AJ would not act impartially in these circumstances, but he or she might well reasonably conclude that his Honour might not be able to.
The facts and circumstances of this case are, on any view, extraordinary and exceptional. It is perhaps not fruitful to endeavour to find analogous cases. The case of Bienstein v Bienstein, relied on by the Crown is not, in any relevant sense, even remotely analogous. The claims of apprehended bias there appeared to be somewhat fanciful. This appears to have been accepted even by Ms Bienstein, who did not even appear at the hearing of her appeal.
Whilst by no means on all fours with this case, some assistance may be gleaned from the reasoning of Weinberg J in Fried v National Australia Bank Ltd [2000] FCA 787. In that matter, Weinberg J’s accountant was to be called as a witness in a case being heard by his Honour. The credit of the accountant was to be in issue. Weinberg J agreed to disqualify himself. He reasoned (at [61]) that a fair-minded observer “would be entitled to conclude that a client would normally regard his or her accountant as a person of integrity and would at least be disinclined to view him as dishonest.” His Honour concluded (at [62]) that the bystander “might think that it would be difficult for me to avoid being subconsciously influenced by my long-standing association with him into accepting as truthful and accurate any evidence which he might give.”
Thus, Weinberg J addressed the question as involving possibilities and as admitting of human frailty. His Honour no doubt believed that he would endeavour to act impartially and that it would be unreasonable for a fair-minded bystander to conclude otherwise. But his Honour accepted that the hypothetical bystander might apprehend that it might not, in the end, be possible for his Honour to avoid being subconsciously influenced. The same applies here.
It may be accepted that applying the test of apprehended bias to the facts and circumstances of this case is not easy. Conflicting considerations make it difficult to draw the line. On the one hand, Whealy AJ is a very experienced judge of the highest integrity. He would be well used to disregarding irrelevant and immaterial facts when deciding difficult matters. As a former appeal judge, he will be well used to passing judgment in respect of alleged errors by trial judges, including judges he may know and have worked with. The evidence concerning his level of contact and professional relationship with Mr Adams is very thin.
But this case is somewhat out of the ordinary. The allegations of prosecutorial misconduct and ethical transgressions that are likely to be levelled against Mr Adams, and that Whealy AJ is likely to be called on to decide, are very serious indeed. Whealy AJ will most likely be required to assess whether evidence given by Mr Adams, including evidence given before him, is honest and reliable. The history of the matter is extraordinary and the stakes for all concerned are high. Mr Eastman spent over 19 years in prison following what is now accepted as having been a deeply flawed trial involving, at best, serious errors of judgment by the Crown and, at worst, serious prosecutorial misconduct. A fair-minded observer may be taken to be aware of all of these matters.
In the end, it is difficult, if not impossible, to conclude otherwise than that there is a real, not remote possibility that a fair-minded lay observer might reasonably apprehend that it would be difficult for Whealy AJ to avoid being subconsciously influenced by his longstanding professional relationship with Mr Adams, as judges of the same court, into accepting Mr Adams’ evidence as truthful and accurate. The lay observer might also think that it would be difficult for Whealy AJ to avoid being subconsciously influenced by his longstanding professional association into accepting that Mr Adams’ alleged transgressions were unintentional and did not involve any unethical conduct. In these circumstances, the lay observer might reasonably apprehend that Whealy AJ might not be able to bring an impartial mind to a potentially critical plank in Mr Eastman’s arguments in support of the permanent stay of his trial. His Honour accordingly should be disqualified from hearing the stay application.
Conclusion and disposition
Leave to appeal was granted when the matter was heard. For the reasons just given, the appeal should be allowed and the order made by Whealy AJ on 24 April 2015 refusing to disqualify or recuse himself should be quashed. An order disqualifying Whealy AJ from hearing Mr Eastman’s stay application should be made.
| I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney, the Honourable Acting Justice Walmsley and the Honourable Acting Justice Robinson. Associate: Date: 10 June 2015 |
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