R v Eastman (No 15)
[2017] ACTSC 143
•21 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 15) |
Citation: | [2017] ACTSC 143 |
Hearing Date: | 13 June 2017 |
DecisionDate: | 21 June 2017 |
Reasons Date: | 22 June 2017 |
Before: | Kellam AJ |
Decision: | The Crown’s application to admit the evidence given by the accused at the first trial be dismissed. |
Catchwords: | EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE OR EVIDENCE – Admissibility of evidence – admissibility of evidence at retrial given by the accused during first trial – consideration of discretion to exclude admissions and evidence presented by prosecution in criminal proceedings – unfair to the accused to use the evidence in the retrial – ruling not absolute if presented with prior inconsistent statements by the accused – s 90 Evidence Act 2011 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT), s 427(1) Evidence Act 1995 (Cth) Inquiries Act 1991 (ACT) |
Cases Cited: | Eastman v Director of Public Prosecutions (DPP) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178 Em v The Queen [2007] HCA 46; 232 CLR 67 Wong Kam-Ming v The Queen [1980] AC 247 |
| Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester: Report of the Board of Inquiry, 31 May 2014 | |
Parties: | The Queen David Harold Eastman |
Representation: | Counsel Mr M Thangaraj SC with Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC with Mr M Stanton and Ms L Line (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 111 of 1992 |
KELLAM AJ:
Admissibility of the evidence of the accused given at the first trial
At the first trial of the accused for the murder of Assistant Commissioner of the Australian Federal Police (AFP), Mr Colin Winchester, the accused gave evidence in his own case for a period of nearly 11 days in September 1995.
The prosecution contends that the whole transcript of the evidence so given by the accused (with some limited exceptions, those being related to evidence of character) is relevant and admissible upon his retrial, and thus seeks to tender the transcript which is in the order of 748 pages in length.
The prosecution has produced to the Court a table said to summarise the accused’s evidence ‘identifying the relevance of each line of questioning and the accused’s representations in response’. The table refers to over 420 specific representations made by the accused in the course of his evidence in chief and in his
cross-examination.
The prosecution argues first that the evidence is relevant. It contends, ipso facto, that the evidence given in the first trial is relevant as ‘questions about irrelevant matters would have been objected to and/or disallowed’ in the course of that trial. It is contended that the prosecution case against the accused has not changed in any significant manner since the first trial and thus what the accused had to say ‘in response to questions put to him when he gave evidence at the first trial is prima facie relevant to the issues in the retrial’. Thus it is argued that, unless excluded by an exclusionary rule, the evidence is admissible.
The prosecution further argues that the representations of the accused in his evidence at the first trial amount to ‘previous representations’ as defined by the Dictionary of the Evidence Act2011 (ACT) (Evidence Act) being representations ‘made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be presented’.
The prosecution submits that the representations of the accused in giving his evidence at the first trial contain ‘a mixture of direct and indirect admissions to matters of fact, qualifications to those admissions, as well as complete denial is to matters of fact and exculpatory self-serving statements’. It is further submitted that the evidence in question ‘contains implied admissions in the form of false denials or lies constituting consciousness of guilt’.
In the table produced to the Court, the prosecution submits that over 150 of the items of evidence summarised in the table can be categorised as ‘lies’ which are admissible as evidence of consciousness of guilt. In later submissions related to the pre-trial argument about admission of evidence as consciousness of guilt, the prosecution has identified 13 specific matters that it seeks to lead as evidence of consciousness of guilt in part of its case against the accused. Of those, as I understand it, 11 instances of evidence arise in consequence of the accused having given evidence in his trial.
The prosecution argues further that over 20 of the items of evidence summarised in the table consist of admissions or partial admissions of facts in issue. In this regard it relies upon section 81 of the Evidence Act as exceptions to the hearsay rule. It relies upon the Dictionary in the Evidence Act which provides that an ‘admission’ is a previous representation that is –
(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.
Other pieces of evidence are said to be relevant to motive.
The prosecution thus contend that the accused’s evidence at the first trial is relevant on the retrial and in those circumstances as a matter of principle the evidence is prima facie admissible, unless it would be unfair to the accused to admit the evidence.
In Stewart v The King (1921) 29 CLR 234 (Stewart), the High Court considered the question of admissibility of evidence given by an accused before a jury in a previous trial for a second trial on the same charge. The accused in that case had been convicted in the previous trial but the conviction had been set aside because of the ‘improper reception of evidence’ in the first trial: at 238. In a joint judgment, the High Court said at 240-1:
We come, therefore, to the substantial point of appeal. We do not doubt that the voluntary statements of a prisoner on a trial for an offence, which has been inconclusive, may be used on a second trial for the same offence. The fact that the statements were made under cross-examination does not destroy their voluntary nature. The extent to which such evidence can be used is the question here.
In R v McGregor [1968] 1 QB 371 (McGregor) the Court of Criminal Appeal considered the question of whether evidence given on oath by an accused at first trial, at which a jury had failed to reach agreement, was admissible in a second trial. The Lord
Chief Justice said at 377: ‘The first ground of appeal here is that the learned judge was wrong in allowing that evidence to be given, first, on the ground that it was
inadmissible ...’ He continued:
With regard to the first point, this court can conceive of no ground upon which it can be said that the evidence was inadmissible. It was in the nature of an admission or a confession at the earlier trial on oath, and it is clearly evidence of possession, one of the relevant matters which the prosecution have to prove. The most that can be said about it is that it is a novel point; neither counsel nor any member of the court can remember a case where this has been done, but in principle, as it seems to this court, there is no ground whatever in such a case why the prosecution should not give that evidence.
In R v Mills [1986] VR 617, Southwell J considered the admissibility in a second trial of an unsworn statement given by an accused charged with murder in a first trial at which the jury had failed to reach agreement. His Honour said at 618: ‘On principle I can see no reason why such a statement should be held to be inadmissible’. His Honour referred to a number of authorities including Stewart, referred to above (at [11]), and concluded that there was ‘abundant authority for the proposition that …’ such a statement made in a previous trial was admissible at a second trial.
Accordingly, I accept the contention of the prosecution that as a general principle, evidence given by an accused at a previous trial may be prima facie admissible at a second trial. In this regard it is appropriate to observe that Senior Counsel for the accused did not seek to argue otherwise. However, that is far from the end of the matter.
On behalf of the accused it is submitted primarily that the admission of his evidence from the first trial would be unfair, in that by doing so, the prosecution would be seeking to gain a forensic advantage as a result of a trial which the Full Court of the Supreme Court of the Australian Capital Territory (the Full Court) has found to be productive of a miscarriage of justice. In this regard, the accused relies upon the judgment of Lasry J in R v Sonnet(No 2) [2011] VSC 551; 220 A Crim R 199 (Sonnet (No 2)). In that case, as in the case before me, the prosecution sought to lead the record of the evidence given by the accused at a first trial. Lasry J determined that the evidence given by the accused at the first trial should be excluded under s 90 of the Evidence Act 2008 (Vic). His Honour observed at [38] that:
the accused gave evidence and was convicted during a trial which the Court of Appeal concluded represented a miscarriage of justice and in respect of which the accused is said to have lost a “realistic chance of acquittal”. In my opinion, it would be unfair to the accused in the conduct of this trial for the Crown to gain a forensic advantage as a result of a trial which the Court has ruled was productive of a miscarriage of justice.
In making his submission that the admission of the evidence previously given by the accused in the second trial would be unfair, Senior Counsel for the accused relied upon the conclusions reached by the Full Court in the course of its consideration of the appropriate orders to be made following the provision of the report of a Board of Inquiry by Martin AJ (Martin Report), who constituted the Board under s 427(1) of the Crimes Act 1900 (ACT) and the Inquiries Act 1991 (ACT).
The Full Court in its decision (Eastman v Director of Public Prosecutions (DPP) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178) paid particular attention to the evidence of the forensic expert called by the prosecution in the course of the first trial. The Full Court at [91]–[94] summarised the evidence of Mr Barnes as follows:
91The 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. ...
92In 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 in its vicinity.
93Mr Barnes asserted that, when PMC ammunition was fired, gunshot residue associated with 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 ... a student who was using the work to prepare his master’s degree thesis.
94Mr 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, in the driver’s seat and its surrounds.
(citations omitted)
The Full Court having considered the Martin Report said at [246]–[247] that:
246There can be no dispute, on the basis of the report’s findings ... that Mr Eastman’s trial very substantially departed from a trial in accordance with law. The jury were presented with ... an apparently convincing and largely unchallenged forensic case. The reality was that that case was without any scientific basis, given by a biased and disingenuous witness and inadmissible. It connected Mr Eastman’s car directly to the murder scene because of Mr Barnes’ false and baseless assertion of the identity of the PMC gunshot residues in both. ... That unchallenged, supposedly “scientific”, evidence by an apparently unbiased expert, also apparently supported by overseas experts, is highly likely to have been very persuasive to the jury, as it was to the trial judge in sentencing and the Full Court on appeal.
247Had the flaws in Mr Barnes’ evidence, and the forensic evidence associated with it, been available as a ground of appeal, it would have been treated by a court of criminal appeal as giving rise to a substantial miscarriage of justice that required the conviction to be quashed.
(citations omitted)
Having observed that the Director of Public Prosecutions did not challenge Martin AJ’s assessment of the crucial role that untrustworthy evidence played in the trial, or how a court of criminal appeal would have acted were its unsatisfactory nature demonstrated, the Full Court stated at [249]:
It cannot be in the interests of justice to allow the conviction to stand when this central feature of the circumstantial case against Mr Eastman has been demonstrated to be baseless. The reception of Mr Barnes’ evidence, and the evidence of other experts used to support it, created a substantial miscarriage of justice’. Mr Eastman did not receive a trial according to law. That is a fundamental right of every person charged with a criminal offence. ... There has been such a substantial failure of the process of a criminal trial that we cannot decide that the conviction is just.
(citations omitted)
Further the Full Court observed at [253]:
The consequence of the inquiry’s findings is that Mr Eastman lost a fair chance of acquittal. It would be an affront to justice to permit the conviction to stand in light of the board’s findings in respect of Mr Barnes’ and the associated forensic evidence.
Senior Counsel for the accused relies upon the decision of Lasry J in Sonnet (No 2) who, as stated above (at [15]) said, when excluding of the evidence of the accused from his first trial stated that ‘it would be unfair to the accused in the conduct of this trial for the Crown to gain a forensic advantage as a result of a trial which the Court has ruled was productive of a miscarriage of justice’: at [38].
It is appropriate to give some consideration at this point to the facts and circumstances which were relevant to the determination of Lasry J in Sonnet (No 2), as the prosecution contends that the circumstances of that case are distinguishable from the circumstances applicable to the present case. The case before Lasry J involved a retrial of the accused, Mr Sonnet, on a charge of conspiracy to murder. Prior to the first trial, a co-conspirator, Mr Thorneycroft, had pleaded guilty to his part in the conspiracy and had provided assistance to police by providing to statements implicating Mr Sonnet in the conspiracy. In addition he participated with police in a recorded conversation. There were inconsistencies between the recorded conversation and the two statements which had been provided to police. Prior to a committal proceeding the two police statements had been disclosed to Mr Sonnet but the recorded conversation was not disclosed. In the course of the committal hearing, Mr Thorneycroft gave evidence and was cross-examined about his police statements. He was not, however,
cross-examined about the inconsistencies between those statements and what he had said in the recorded conversation, because the recorded conversation had not been disclosed to him or to his legal advisers. Between the committal proceedings and the trial of the matter, Mr Thorneycroft died of a drug overdose. At the trial of Mr Sonnet, the prosecution tendered the two witness statements and the transcript of the
cross-examination of Mr Thorneycroft at the committal. Over objection, the trial judge ruled that they were admissible. It is to be observed that counsel for Mr Sonnet was provided with a copy of the transcript of the recorded interview only in the course of pre-empanelment argument. The trial resulted in the conviction of Mr Sonnet.
Upon appeal to the Court of Appeal of the Supreme Court of Victoria (Sonnet v The Queen [2010] VSCA 315; 30 VR 519), it was held that the failure of the prosecution to provide the accused with the transcript of the recorded interview at the time of the committal hearing meant that the statements made by Mr Thorneycroft should have been excluded from evidence as a matter of fairness. The Court said at [129] that the importance of Mr Thorneycroft’s statements to the ‘Crown case was such that, by reason of the judge’s failure to exclude [the statement(s)] from evidence, the applicant was deprived of a realistic chance of acquittal.’ The appeal was accordingly allowed and a new trial was ordered. That trial was the trial which came before Lasry J.
Senior Counsel for the accused referred to the determination of the Full Court referred to above, to the effect that there had been a substantial miscarriage of justice. Counsel relied upon the findings of the Full Court in relation to the evidence of Mr Barnes, in summary being that it was ‘crucial to the trial’ (at [91]) and had ’extensive flaws’ (at [91]), and was ‘given by a witness who regarded himself as a police witness and was biased’ (at [104]) and who had failed to comply with accepted forensic practice. It was contended that those findings, amongst others, were not challenged by the Director before the Full Court. The Full Court observed at [248], that ‘[t]he Director did not challenge Martin AJ’s assessment of the crucial role that untrustworthy evidence played a trial or how a Court of criminal appeal would have acted was its unsatisfactory nature demonstrated.’ It is submitted that those findings should not be challenged now.
In addition to the flawed forensic evidence referred to above, the accused relies upon findings of the Full Court in relation to the conduct of the principal investigator, Commander Ninness. The Full Court endorsed the finding of Martin AJ to the effect that notes of a statement made by Commander Ninness which were not produced to the defence, directly contradicted the evidence given by him when he was recalled to rebut the claims of the accused that he had been harassed by the investigation team. Those notes ‘contained material that could have supported Mr Eastman’s credibility about his having been harassed, rather than allowing Mr Ninness’ evidence to portray his allegations as unjustified attacks on the integrity of the police’: at [239].
Senior Counsel for the accused referred further to the findings of Martin AJ and the Full Court to the effect that there were issues of nondisclosure in relation to the evidence given by Dr Roantree. In this regard however, it should be observed that the
non-disclosed statement of Dr Roantree to the effect that he had a ‘niggling doubt’ as to whether the accused had said to him that ‘I should shoot the bastard’ had been stated by Dr Roantree at the inquest and was thus known to the defence.
It is argued that the decision of the accused to give evidence in the first trial cannot be divorced from the reality of the Crown case as presented at the first trial, with that case found to be ‘inextricably woven’ around Barnes’s evidence (at [252]), and in circumstances whereby, inadvertently or not, the AFP and the Director had failed to comply satisfactorily with their duties of disclosure.
In addition to the principal submission advanced on behalf of the accused that by admitting the evidence of the accused given on the first trial, the prosecution would gain a forensic advantage in circumstances where the accused has been found to have suffered a substantial miscarriage of justice, it is argued that even if relevant and admissible, the record of the evidence of the accused presents difficulty in terms of its presentation to the jury. The written submissions filed in relation to this matter assumed that there was an audio recording and a transcription of the evidence. In fact it is now clear that there is only a transcript of the evidence and that there is no longer (if there ever was) any audio recording of that evidence. It is submitted on behalf of the accused that the reliance upon a transcript alone has a potential to cause injustice. It is argued that the jury will be denied the ability to assess the demeanour of the accused as a witness and it will be denied the opportunity to bring to its decision-making function a number of factors which the transcript itself cannot provide. The jury will not see or hear signs of fatigue, lapses in concentration or pauses in the answers of the accused, and the reading to a jury of substantial portions (whether it is the whole of the 11 days or some agreed shorter version) of the evidence will create a situation of unfairness to the accused. It was argued that the provision of a transcript of a jury will cause undue focus upon what he said at the first trial to the cost of the evidence that is given in the trial. In this regard it is argued that depending upon the particular representation, the evidence may need to be excluded pursuant to s 137 of the Evidence Act because its probative value is outweighed by the danger of unfair prejudice. In those circumstances it is further argued that by reason of the prosecution seeking to rely upon the entirety of the evidence given by the accused over a period of 11 days, with some limited exceptions, the probative value of the evidence is substantially outweighed by the danger that the evidence might be an undue waste of time contrary to s 135(c) of the Evidence Act.
In answer to this submission, the prosecution says first that the reading of a transcript is commonplace, particularly on appeal, and in any event, appropriate instructions can be given to a jury in respect of that manner of giving evidence. Furthermore, it is submitted that in the event that the evidence is ruled as admissible, the prosecution and the defence will endeavour to reach agreement upon how the volume of evidence may be reduced. Notwithstanding this, and although this is not a major factor in the determination of the matter, I consider that there is some weight in the argument that so much emphasis on the transcript of what was said previously, particularly when combined with the numerous matters contained therein that the prosecution seeks to establish as lies, whether going to credit or as consciousness of guilt may well work an unfairness to the accused by reason of its disproportion to other evidence.
As stated above, the prosecution argues that the circumstances of Sonnet (No 2) are distinguishable from the present case. First it is noted that, as a result of
Mr Thorneycroft’s evidence not being admitted on the retrial of Mr Sonnet, the prosecution case and the charge faced by Mr Sonnet was reformulated. This is correct, as the conspiracy to murder charge in the first Sonnet trial contained as one of its elements the murder of a named person whereas at the second trial the charge faced by Mr Sonnet was one of conspiracy to murder an unknown person. It is argued that whilst the evidence of Mr Barnes was an important part of the first trial of the accused, it did not have the same significance as Mr Thorneycroft’s evidence in the first Sonnet trial. It is submitted that notwithstanding the fact that Mr Barnes’ evidence is no longer being relied upon by the prosecution, neither the charge nor the prosecution case against the accused has been reformulated. It is contended that the prosecution case has not significantly changed as a result of Mr Barnes’s evidence being omitted from the retrial, nor has it significantly changed as a result of the accused giving evidence at the first trial. Whilst it is true that the charge has not been reformulated here, as in Sonnet, there is nevertheless a substantial change in the case which the prosecution seeks to prove its case. Although that clearly does not amount to a new case of the nature discussed in R v Taufahema [2007] HCA 11; 228 CLR 232, it is apparent that the prosecution ‘is inviting a new and additional form of reasoning’: R v Eastman (No 9) (Unreported, Supreme Court of the Australian Capital Territory, Ashley AJ, 14 April 2016) at [273] (Eastman (No 9)).
By an amended notice filed by the prosecution on 21 August 2015, notice was given of the intention of the prosecution to rely upon 47 incidents, 28 of them identifying threats and/or acts of violence by the accused in the period 1985 to 1995 which it is contended demonstrate a tendency on the part of the accused to make threats or use violence. Other incidents (19 in total) are said to exhibit his desire to obtain a firearm. In addition, an amended coincidence notice was filed on 25 September 2015 relying upon a number of incidents to prove two particular acts of the accused as being improbable to be coincidental. Whilst it is true that some of the matters were the subject of evidence in the first trial as part of the circumstantial case, others are sought to be adduced for the first time as evidence of tendency and coincidence. None of that material that was admitted into evidence at the first trial was admitted as evidence of tendency or coincidence, notwithstanding that the Evidence Act 1995 (Cth) applied at the time of the first trial.
Further, the prosecution argues that the admissions made by Mr Sonnet in his trial about being involved in the criminal conduct, the part subject of the charge, is quite a different circumstance to the evidence given by the accused, which contains no such direct admissions to the criminal conduct of the charge. Rather the evidence given by the accused is said to contain admissions to relevant circumstantial facts. I do not consider this distinction between the two cases to be of great weight.
Further, it is argued that the failure of the prosecution to disclose the recorded conversation at the committal of Mr Sonnet such that the witness could have been cross-examined meant that a ‘sanitised version of important evidence’ went before the jury as well as the evidence from Mr Sonnet. It is submitted that no such failure existed in the trial of the accused and that the unfairness that existed in the Sonnet case is not present in this case, and accordingly there is no basis to exclude the evidence of the accused on the retrial. Again, I do not regard this distinction to be of great weight.
In response to the defence submission regarding the admissibility of the accused’s evidence given at the first trial, the prosecution relied upon a number of further matters. First, reliance is made upon the conclusion of Martin AJ to the effect that the
non-disclosure of information relating to Mr Barnes was not as a result of anyone in the AFP or the prosecution deliberately engaging in a breach of duty by intentionally withholding from the defence information which was known should have been disclosed: Martin Report at [1761]. Secondly, it is argued that the decision of the accused to give evidence was made despite him ‘knowing much about the weaknesses in the forensic case’. In the course of the stay application before Ashley AJ in Eastman (No 9), a bundle of documents together with a table summarising the information that was said to be available to the defence at the time of the first trial was tendered. That table was annexed to written submissions dated 8 June 2017 and put before me in the course of this application. I was informed that a similar table had been provided during the Martin inquiry but the issue was not addressed in the report by Martin AJ. The issue however was addressed in some detail by Ashley AJ upon the hearing of the stay application. In the course of dealing with the issue of non-disclosure in his judgment, his Honour said at [468]:
Considering all the evidence to which I have referred, the submissions written and oral, and findings made by Martin AJ about a number of the matters agitated before me, in my opinion there is very little to which the adjective blameworthy could attach with respect to the nondisclosures before trial of which Eastman complained. Many of the nondisclosures complained of were founded upon the practice which prevailed at the time. In respect of other matters complained of, disclosure was simply not required, or else the prosecution legal team reasonably held the opinion that disclosure was not required. On a very few occasions, there was accidental nondisclosure.
Ashley AJ also observed that:
whilst I do not depart from the conclusion reached by Martin AJ that Eastman’s side was woefully unprepared to meet the Crown’s forensic case, there was placed before me a good deal of information which is led me to conclude both that Eastman’s side knew clearly enough the gist of that case and weaknesses in it.
Accordingly the prosecution relies upon the findings of Ashley AJ and in particular submits that those findings:
place the defence submission that the first trial substantially miscarried, in part because of nondisclosures by the prosecution, into context and undermine the submission that it would be unfair to use Mr Eastman’s evidence from the first trial.
Furthermore, and insofar as is the accused relies upon findings of the Full Court that Mr Ninness had made statements which were recorded in a file note that directly contradicted his evidence at the first trial regarding the harassment of the accused, it is argued that ‘any failure to disclose the note, if disclosure was required, was inadvertent.’ In this regard the prosecution relies upon consideration by Ashley AJ of the circumstances in question and the conclusion of Ashley AJ that he was not satisfied that the prosecutor at the first trial knowingly permitted Mr Ninness to give false evidence: Eastman (No 9) at [412]. Whilst it may be so that the non-disclosure may have been inadvertent that does not seem to me to be the question. By way of example there is nothing in my reading of the decisions of the Court of Appeal or of Lasry J in the respective Sonnet decisions which leads to a conclusion that the non-disclosure of the record of interview of Mr Thorneycroft was other than inadvertent. Indeed had the non-disclosure been deliberate, one would have expected that that issue would have played some part in the consideration of the matter, at least by the Court of Appeal.
Further, and whilst of course I have great respect for the findings of Ashley AJ on the stay application, it is clear that in terms of the finding of whether or not there was a miscarriage of justice, I am bound to accept the findings of the Full Court.
In further submissions in reply the prosecution argues that the decision of Sonnet (No 2) does not assist the accused. It is said ‘the Crown has not been able to find any subsequent decision which relies on or refers to the decision.’ That assertion is not particularly helpful as in my own research I have not been able to find any subsequent case whereby the admissibility in a second trial of evidence given in a first trial has been the subject of decision by a superior court.
It is further argued that:
[G]iven that a quashing of a conviction and an order for a retrial follows from a finding that there has been a substantial miscarriage of justice, on the defence’s interpretation of Sonnet(No 2), the evidence of an accused given at the first trial would never be admissible on a retrial.
I do not accept that proposition. There could be a substantial miscarriage of justice caused by a misdirection in the charge by a judge, or the refusal to permit evidence to be adduced, which may assist the accused and which may later be held by an appeal court to be admissible, or perhaps by unsustainable assertions being made in a prosecution address which would result in a successful appeal and a direction for a retrial. In principle, and without anything more, it would be difficult to say in such circumstances that there would be any unfairness in the admission of relevant evidence given by an accused in a first trial.
Perhaps it should also be observed that few of the authorities dealing with the issue of admissibility in a second trial of evidence given on a first trial, in fact deal specifically with the circumstances of a retrial having been ordered after a conviction on the first trial has been set aside on the grounds of a substantial miscarriage of justice. In R v Hunt and Ollivier (1887) 8 LR (NSW) 38 (R v Hunt), the prosecution sought to tender in evidence a statement that had been made in a previous trial by an accused after the jury had failed to reach agreement in the first trial. The early case of Stewart, referred to above, states that the conviction of the first trial had been set aside because of the ‘improper reception of evidence’ (at 238). As stated above at [11], the Court expressed the view that voluntary statements of an accused on a trial for an offence ‘which has been inconclusive’ may be used on a second trial for the same offence. In the English case of McGregor referred to above at [12], the jury had failed to reach agreement at the first trial. In the Victorian case of R v Mills referred to above at [13], the reason for the retrial was that the jury had failed to reach agreement in the first trial.
Likewise in R v Lang [1965] NSWR 1313, the Full Court of the Supreme Court of New South Wales referred to R v Hunt with approval, by saying at 1319 ‘it has been held that such a statement is evidence against the accused at a second trial, the jury having disagreed at the first trial’. By the words ‘such a statement’ the Court was referring to what in those days was known as either an unsworn statement or a statement not on oath. The Court went on to say ‘the rule is the same if the accused gives evidence on oath at his former trial’. Further in Wong Kam-Ming v The Queen [1980] AC 247, the Privy Council gave consideration to the question of the admissibility of statements made on a voir dire. Lord Edmund-Davies speaking for the majority said at 260: ‘indeed, for such purpose and in such circumstances, his voir dire statements stand on no different basis than, for example, the sworn testimony given by a defendant in a previous trial where a jury had disagreed.’ Statements made by an accused in a voir dire are entirely different to the evidence of an accused given in response to a prosecution case which is based upon such flawed and inadmissible evidence as it has now been found to be the case in the first trial.
Accordingly it appears that the only definitive authority in circumstances whereby the prosecution has sought to tender the previous evidence of an accused person given at a trial which has resulted in a conviction and which was set aside by a court appeal by reason of a miscarriage of justice is the case of Sonnet (No 2), and perhaps the case of Stewart referred to above, whereby the conviction on the first trial was set aside by reason of the ‘improper reception of evidence’: at 238.
Without at this point descending into the detail of the over 420 previous representations upon which the prosecution relies it is apparent that at least some of what was said by the accused in the 11 days of giving evidence are categorised as admissions within the meaning of s 90 of the Evidence Act which states:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –
(a)the evidence is presented by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
It is appropriate to observe that it is clear that the onus is upon the accused to demonstrate why it would be unfair to him to use his evidence in a retrial.
In Sonnet (No 2), Lasry J gave consideration to the application of s 90 of the Evidence Act to the circumstances before him. His Honour at [31] referred to the decision of the High Court in Em v The Queen [2007] HCA 46; 232 CLR 67 and observed that Gleeson CJ and Heydon J concluded at [56] that:
The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Gleeson CJ and Heydon J noted that the application of s 90 is “likely to be highly fact-specific”.
In their judgment in Em v the Queen, Gummow and Hayne JJ said at [107]:
As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, “would be unfair”. That is, the focus of section 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as “fair” or “unfair”.
Conclusion
The prosecution argues that ‘whilst the evidence of Mr Barnes was critical in connecting the accused’s car to the murder scene it was not critical to securing the conviction against him’. It is true, as submitted by the prosecution, that Martin AJ, the Full Court, and Ashley AJ found that even absent the forensic evidence of Mr Barnes, the case against the accused remained a strong circumstantial case. Furthermore, it appears to be the case that those advising the accused had at least some knowledge of the concerns, which later became clear in relation to the evidence given by
Mr Barnes. Nevertheless the Full Court has found that ‘the significance of Mr Barnes’s evidence cannot be gainsaid’: at [96].
The Full Court referred to the findings of Martin AJ in detail, stating at [104]:
Importantly, the board found that unknown to the defence, Mr Barnes:
· gave evidence to the inquest that lacked a proper scientific basis;
· “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”;
· 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);
· had had concerns expressed about him and aspects of his work by overseas experts, including the database, and his explanations for perceived anomalies had not been accepted as satisfactory;
· 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 ...
(citations omitted) (emphasis in original)
The Full Court at [106] referred to the finding of Martin AJ that the evidence was ‘overwhelming that Mr Barnes lacked independence and was biased in favour of the prosecution’. It noted that had that fact been disclosed and presented to the jury it would have been devastating to Mr Barnes’ credibility and that moreover, as Martin AJ also found, ‘had the evidence of bias been linked to the facts underlining the disciplinary charges and substantive inadequacies in Mr Barnes’ case files, the entire complexion of the [prosecution’s] forensic case would have changed dramatically’: at [106].
The Full Court at [121] also referred to the finding of Martin AJ that:
1128In 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.
The Full Court said at [246]–[247]:
246That ‘unchallenged, supposedly scientific, evidence by an apparently unbiased expert, also apparently supported by overseas experts, is highly likely to have been very persuasive to the jury, as it was to the trial judge in sentencing and the Full Court on appeal.
247Had the flaws in Mr Barnes’ evidence, and the forensic evidence associated with it, been available as a ground of appeal it would have been treated by court of criminal appeal as giving rise to a substantial miscarriage of justice that required the conviction to be quashed.
It should be observed that in relation to the above findings of Martin AJ referred to in the judgment of the Full Court, the Full Court stated at [227] that:
Here, the Director did not contest the appropriateness of Martin AJ’s detailed factual findings in relation to Mr Barnes and the associated forensic evidence. Those findings were cogent and the result of a thorough, painstaking analysis of the evidence that was before the inquiry.
Furthermore, the Full Court stated at [248]:
The Director did not challenge Martin AJ’s assessment of the crucial role that untrustworthy evidence played in the trial or how a court of criminal appeal would have acted were its unsatisfactory nature demonstrated.’
The Full Court concluded at [253] that the consequence of the findings ‘is that
Mr Eastman lost a fair chance of acquittal’ and that it ‘would be an affront to justice to permit the conviction to stand’ and that ‘the trial did not observe the requirements of the criminal process in a fundamental respect’.
Had the true facts about the gross deficiency of the evidence given by Mr Barnes been known to the Director at the time of the first trial, it is highly likely that his opinion evidence would not have been placed before the jury by the prosecution. Had those facts been known to the defence, it is likely that an application would have been made to the Court to have Mr Barnes’ so‑called expert testimony ruled as inadmissible. Had the evidence not been called, or had it been ruled to be substantially inadmissible, it is likely the trial would have proceeded at that time in much the same way that the trial is now anticipated to proceed before me.
I accept the logic applied by Lasry J in Sonnet (No 2) at [40] that the question does not depend on the nature of the conduct leading to the non-disclosure of the true facts, about the serious deficiencies in Barnes’ evidence, or whether or not the accused might have given evidence if the trial had taken a different course. The fact is that the tainted evidence was put before a jury, and the Full Court has determined that the evidence in question was productive of a miscarriage of justice.
It is obvious that the forensic advantage flowing to the prosecution will be substantial if the evidence of the accused is led in the retrial. Annexure A to the written submissions of the prosecution relating to the admissibility of the evidence of the accused, which annexure sets out over 420 items of evidence of the accused upon which it seeks to rely, is the clearest statement of the potency of that forensic advantage. In my view, to permit the prosecution to gain such a forensic advantage would, to use the words of Lasry J in Sonnet (No 2) at [41] ‘be at odds with the effect of the [Full Court’s] decision and would be unfair to the accused in the trial that is about to commence’. As stated above, although it cannot be said the prosecution has reformulated its case, the way in which it intends to lead additional evidence and to rely upon that and some of the evidence previously given will be quite different from the case that the accused had to meet at the first trial. Accordingly, I propose to exercise the discretion given to the Court pursuant to s 90 of the Evidence Act and rule that having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence in the forthcoming trial.
However, notwithstanding the above ruling, it is appropriate to say that I am conscious of, and to a degree share, the concerns expressed by the prosecution that if the accused’s evidence from the first trial is not admitted, the defence could run a case completely inconsistent with previous admissions made by the accused. As the prosecution submits, this would be an unfair tactical advantage and would be misleading to the jury. Section 90(b) of the Evidence Act requires consideration by the Court of the issue of unfairness to the accused. It also requires consideration of only ‘the circumstances in which the admission was made’ and not the whole circumstances of the consequences of the exclusion of the admission.
The concerns of the prosecution as to possible unfairness flowing from my ruling are not, in my view, without substance. Senior Counsel for the accused, very properly, acknowledged that by stating in the course of his submissions that ‘if certain puttage is put to witnesses that the Crown may revisit this particular issue and seek your Honour’s leave to produce certain evidence from the first trial’. Likewise, he acknowledged that in the event of the accused giving evidence that is inconsistent with the evidence given by him at trial the prosecution may well seek leave to adduce evidence of prior inconsistent statements of the accused. It should not be assumed in such circumstances that the protection provided by my ruling excluding the evidence of the accused at the first trial is absolute, nor that in appropriate circumstances, I would not be prepared to revisit the question of the admissibility of particular aspects of such evidence.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 22 June 2017 |
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