Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104

Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 - ACTSC 2014 case summary — Zoe

[240]

On 10 August 2012 when the court last dealt with this matter it had intended to program a hearing of an application for an inquiry, however, counsel for the DPP, Mr Lundy, informed the court the DPP did not oppose the application. I took that to mean non-opposition to the application before the court as amended. I also took that to be a concession given by counsel operating at arm's length that I should order an inquiry based on grounds contained in the amended application. It was my intention that the extent of the inquiry be reflected in the grounds in the application. That course was not opposed by the DPP on 10 August.

Later the court was asked to reconvene to clarify its orders. The court has convened for that purpose today. Last week it asked for submissions about the form of any order that the court should make to reflect its intention on 10 August 2012, together with a copy of any proposed draft order. Only the legal representatives of Mr Eastman complied with that request. The DPP instead has filed no suggested variation to the court's orders but has filed submissions seeking to cavil with the original orders made and, in effect, seeking to withdraw from its previous position of not opposing the orders sought by Mr Eastman.

The proposed amended orders which counsel for Mr Eastman requested I make today reflect my intention on 10 August 2012 based on the non-opposition to those orders by the DPP. I understood that such non-opposition was based on considered instructions. The attempt to cavil with the orders made on 10 August is, in effect, illustrative of a view that the Full Court in Eastman v Marshall is incorrectly decided. I have much sympathy for that view; however, the DPP is responsible for the outcome of that judgment, having made no attempt at the hearing before the Full Court to seek to defend that judgment I previously made that I had no jurisdiction to embark on the inquiry.

This led to the ACT Executive appearing before the Full Court to support the argument of Mr Eastman that the jurisdictional judgment was incorrect. Success in that regard permitted the ACT Executive after the Full Court decision, which it urged, to avoid deciding for itself whether to order an inquiry. These circumstances allowed the matter to proceed before the Full Court with no contradictor. The entire saga of the Eastman jurisdictional issue has been attended with a bizarre attitude by the DPP. The DPP now seeks to further muddy the waters in an inappropriate way.

The only way to place an inquiry into Mr Eastman's conviction on a completely secure footing and lead to an urgent hearing of such an inquiry would be for the ACT Executive to have the intestinal fortitude to order an inquiry itself under its undoubted powers to do so. This whole sorry saga is the reason why I will not be making myself available to sit again on this court in any capacity once my reserved judgments in three recent Court of Appeal matters have been published, together with any reserve judgments after what will be my final week sitting as an additional judge of the ACT Supreme Court, subject to publication of any reserve judgments.

[256]

I am required to comply with both the instrument of my appointment and the terms of the order made by Marshall J. The scope of the inquiry is primarily determined by reference to the terms of the order. However, it must be said that in some respects paragraphs of the order are ambiguous and couched in language more appropriate for submissions than terms of an order.

...

In making the order of 3 September 2012, Marshall J specifically recorded that he had found that the amended application filed on 10 August 2012 complied with section 422(1) of the Act. In other words, his Honour was satisfied that the conditions [which must be satisfied before the court may order an inquiry] had been met.

...

There has been no attempt to challenge the validity of [Marshall J's] order in judicial proceedings.

...

Notwithstanding the language in which the written submission is couched ... the submission leaves no room for doubt that the Director is suggesting that the Board should go behind the order of Marshall J and determine for itself whether the subject matter for the inquiry ordered by his Honour satisfies the conditions specified in section 422(1).

...

The jurisdiction of the Board does not depend on the Board being satisfied that the conditions specified in section 422 have been fulfilled. The jurisdiction to inquire is found in the instrument of appointment coupled with the order of the Supreme Court.

As a matter of principle, a body performing an administrative function is required to perform that administrative function in accordance with the instrument or judicial order which confers jurisdiction and directs the performance of that administrative function. It is no part of that administrative function to inquire into the validity of the instrument or judicial order. There is no power to decline to comply with the order before the body performing the administrative function is of the view that the instrument or order is invalid.

Applying these principles, it would be inappropriate for me to investigate with respect to each paragraph of the order whether the particular doubt or question satisfies the condition specified in section 422(1).

... if the terms of an order lead to ambiguity as to the scope of the particular inquiry, having regard to background circumstances which provide the context in which the order was made might assist in determining the scope of the particular inquiry intended by the executive and Marshall J.

[601]

(a) The expression of opinions by Mr Barnes at trial concerning the source of propellant particles being PMC ammunition without having conducted tests or having data to substantiate those opinions;

(b) Possible conflicts revealed in the notes/reports/evidence of Mr Barnes, file notes of the ACT DPP and a report of an overseas expert regarding the number of particles on slides, the description of relevant particles, the destruction of particles, the continuity of exhibits and the source of particles claimed to have been tested;

(c) The possibility that there is no reliable data for the opinion that there were PMC propellant particles in Mr Eastman's car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Bradshaw (not the murder weapon) as the source of ... the gunshot residue in Mr Eastman's car;

(d) The possibility that there is only data for two "rogue" particles at the scene and to "rogue" particles in Mr Eastman's car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Lenaghan as the source of the two "rogue" particles in Mr Eastman's car;

(e) Tests conducted by Dr Wallace to show that non silenced weapons can be a source of "charred" particles;

(f) The "database" relied upon by Mr Barnes as part of his ability to exclude other ammunition types as a source of the gunshot residue was work conducted by another scientist, Mr Strobel, as part of his master's course;

(g) Whether the expression of opinions by Mr Barnes at the trial ... went too far and had the potential to mislead;

(h) The preparedness of Mr Barnes to express opinions at the inquest without having conducted tests or having data to substantiate those opinions;

(i) The covert taping of a telephone conversation between Mr Barnes and an AFP officer, in which Mr Barnes expressed himself in a manner that might indicate lack of independence;

(j) The Victorian police laying internal disciplinary charges against Mr Barnes and subsequently withdrawing those charges upon Mr Barnes' resignation in 1993.

At a glance

Court

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Judgment (623 paragraphs)

Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 (22 May 2014)

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Legislation Cited (30)

Cases Cited (57)