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[2016] ACTCA 65
Court of Appeal (ACT)
2016-12-02
Osborn, Whelan and Priest AJJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Eastman v Director of Public Prosecutions (No 13)
Citation: [2016] ACTCA 65
Hearing Dates: 24–26 October 2016
Decision Date: 2 December 2016
Before: Osborn, Whelan and Priest AJJ
Decision: Leave to appeal refused.
Category: Interlocutory appeal
Catchwords: CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Principles applicable on leave to appeal an interlocutory decision – Position of court of appeal on reviewing decision of trial judge in the course of criminal proceedings – Whether assessments and conclusions of trial judge open – Whether proper assessment of the disadvantages facing the applicant – Whether proper account taken of relevant considerations – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged apprehended bias – Whether fair-minded lay observer might reasonably apprehend bias from ‘effect’ of passages in text of judgment – Lay observer informed to extent necessary to make fair judgment – Whether judge formed ‘pervasive negative view’ of applicant – Statements reveal irritation and frustration on part of judge – Statements to be assessed within full context – No error of fact identified – Criticism also directed at respondent – Informed lay observer would not apprehend bias – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Judge refusing stay took into account applicant’s reliance before him of arguments similar to those put to Full Court of the Australian Capital Territory Supreme Court when resisting order for retrial – Whether reliance on similar arguments irrelevant – Whether productive of error – Inevitable that many arguments would be relevant both to issues before the Full Court and before the judge considering stay – Independent consideration given by judge to all relevant issues – Whether judge erred in observing that the applicant faced a more difficult task in seeking a permanent stay after an appellate court ordered a retrial – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness resulting from public interest immunity claims with respect to information disclosing the identity of police informers – Application of Evidence Act 2011 (ACT) s 130 – Whether irremediable consequential unfair prejudice to the applicant demonstrated – Material uncertainty as to evidence to be led at trial – Capacity of trial judge to clarify evidentiary issues and regulate procedure – Matters advanced on appeal which were not advanced to the trial judge – Evaluation of competing public interests – Whether trial judge’s conclusion concerning public interest open – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness due to inadequacy in original police investigation – Loss of chance to explore avenues of enquiry which may have led to acquittal – Loss of potentially relevant evidence not sufficient to demonstrate trial unfair – Matters relied on capable of evaluation by properly instructed jury – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged unfairness due to pre-trial publicity – No error in trial judge’s analysis of issue – Prejudice complained of not sufficient to create a fundamental defect in the trial – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Cumulative unfairness – Whether trial judge impermissibly disaggregated complaints of unfairness – Whether trial judge’s overall conclusions concerning unfairness open – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Alleged oppression resulting from the retrial – Allegation retrial would bring the administration of justice into disrepute – Where initial trial resulted in miscarriage of justice – Where applicant has spent 19 years in custody following wrongful conviction – Where allegation prosecuting authorities aware of matters occasioning miscarriage of justice – Where retrial will be burdensome and costly – Whether trial judge’s view open – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Applicant seeks to rely on an alternative hypothesis as to who may have committed the murder – Strength of alternative hypothesis said to detract from strength of Crown case – Whether judge refusing stay erred in determining the alternative hypothesis to be speculative as matters presently stand – Whether judge erred in departing from the assessment of the strength of the alternative hypothesis as found in the Martin Report – Judge’s view consistent with that in the Martin Report – Not possible to assess the strength of alternative hypothesis until adequately tested – Not possible as matters currently stand to infer Crown case not strong because of alternative hypothesis – Leave to appeal refused.
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Applicant charged with murder – Evidence of key prosecution ballistics expert at applicant’s original trial discredited in Martin Inquiry – Expert employed by Victoria Police was consultant to Australian Federal Police – Information capable of materially affecting assessment of expert’s reliability and credibility known to Victoria Police – Failure by Victoria Police to disclose information to Australian Federal Police or those concerned with prosecution – Australian Federal Police and those concerned with prosecution unaware of information relating to expert’s reliability and credibility – Whether judge refusing stay erred in failing to find breach of duty of disclosure – Non-disclosure by Australian Federal Police and Director of Public Prosecutions inadvertent – No potential for an unfair trial – Leave to appeal refused.
Court Procedures Act 2004 (ACT) Legislation Cited: Court Procedures Rules 2006 (ACT) Crimes Act 1900 (ACT) Director of Public Prosecutions Act 1991 (SA) Evidence Act 2011 (ACT) Supreme Court Act 1933 (ACT) Parties: David Harold Eastman (Applicant) Director of Public Prosecutions (Respondent)
Representation: Counsel: Mr P Tehan QC with Mr P Doyle and Ms L Line (Applicant) Mr M Thangaraj SC with Dr P Dwyer and Mr K Lee (solicitor) (Respondent) Solicitors: Legal Aid ACT ACT Office of the Director of Public Prosecutions
File Number: ACTCA 15 of 2016
Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Ashley AJ Date of Decision: 14 April 2016 Case Title: R v Eastman [No 9] Citation: [2016] ACTSC 69 Introduction............................................................................................................... 6 The grounds of appeal ............................................................................................. 6 The background facts .............................................................................................. 7 Overview of the stay application and the Stay Reasons ....................................... 12 Principles governing the permanent stay of criminal proceedings ....................13 Principles applicable to an interlocutory appeal ..................................................16 Was the order of Ashley AJ an interlocutory order? .............................................. 16 The discretionary nature of the order in issue ....................................................... 17 Apprehended bias (Ground 1) ................................................................................18 Material relied upon in relation to apprehended bias ............................................ 20 Submissions.......................................................................................................... 22 Stay Reasons complaints — the ‘effect’ of passages in the Stay Reasons........................................................................................................ 23 Analysis of complaints concerning findings on issues raised in the stay application —Stay Reasons complaints (e), (f), (g) and (h)................................................................................................................... 25 Analysis of complaints concerning observations made as to the conduct of the stay application — Stay Reasons complaints (b), (c) and (d) and additional complaint (b) ........................................ 28 Complaints as to observations concerning the history of the matter — Stay Reasons complaints (a) and (i) ..................................................... 29 Observations of a more general character in the course of hearings — additional complaints (a), (c) and (d) ................................................. 30 Waiver ................................................................................................................... 30 Pursuit of matters ‘regardless of merit’ .................................................................. 30 ‘New and intendedly ingenious twist’ .................................................................... 34 The combined effect of the judge’s negative view ................................................. 36 Conclusion on apprehended bias .......................................................................... 37 Taking into account the applicant’s previous reliance on similar arguments (Ground 6) ................................................................................................................37 The applicant’s submissions ................................................................................. 38 The respondent’s submissions.............................................................................. 39 Analysis................................................................................................................. 40 Ashley AJ failed to place any or sufficient weight on the matters which tend to compromise the fair presentation and consideration of the applicant’s defence at any retrial, and failed to consider the combined force of these matters (Ground 2) ................................................................................................................46 Issues of confidentiality ......................................................................................... 46 [redacted] .................................................................................................................. [redacted] .................................................................................................................. [redacted] .................................................................................................................. [redacted] .................................................................................................................. Inadequacies in the police investigation of the alternative hypothesis ............................................................................................................. 55 Pre-trial publicity ................................................................................................... 58 The counterbalance of public interest ................................................................... 61 Cumulative unfairness........................................................................................... 61 Grounds 3 (oppression resulting from a retrial) and 4 (bring the administration of justice into disrepute) .........................................................................................62 Characterising the ‘alternative hypothesis’ as ‘speculative’ (Ground 5) ............63 Prosecution’s failure to disclose relevant material (Ground 7) ...........................65 Conclusion ...............................................................................................................81 THE COURT:
Introduction
At about 9:15 pm on 10 January 1989, Colin Winchester, an Assistant Commissioner of the Australian Federal Police (‘AFP’) — and the highest ranking police officer serving in the Australian Capital Territory — was murdered. He was shot twice to the head with a .22 calibre firearm.
On 3 November 1995, the applicant, David Harold Eastman, was convicted of Mr Winchester’s murder. A week later, on 10 November 1995, the applicant was sentenced to be imprisoned for life. 1
The applicant appealed against his conviction to the Full Court of the Federal Court 2 and the High Court, but without success.
On 3 September 2012, a judge of the Court made an order under s 424(1) of the Crimes Act 1900 (ACT) that there be an inquiry into the applicant’s conviction for the murder of Mr Winchester. The inquiry was conducted by Martin AJ (‘the Martin 3 Inquiry’), who, on 29 May 2014, pursuant to s 428(1) of the Act, provided his report 4 to the Registrar of the Court. He found that a substantial miscarriage of justice had occurred in the applicant’s trial, and recommended that the Full Court make an order under s 430(2)(c) of the Act to the effect that the conviction be quashed and no retrial 5 be ordered.
On 22 August 2014, the Full Court ordered that the applicant’s conviction for murder be quashed, but that — contrary to the recommendation of Martin AJ — there be a 6 new trial.
Relying on a combination of circumstances, the applicant then applied for a permanent stay of the proceeding. The application was opposed by the Crown. In 7 the result, on 14 April 2016, Ashley AJ refused to grant a permanent stay. 8
The applicant seeks leave to appeal against that decision.
For the reasons that follow, we would refuse leave to appeal.
The grounds of appeal
i. A fair-minded lay observer might reasonably apprehend that Ashley AJ might not have brought an impartial mind to the resolution of the stay application;
1 Eastman v The Queen (1997) 76 FCR 9. 2 Eastman v The Queen (2000) 203 CLR 1. 3 Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester: Report of the Board of Inquiry, 29 May 2014 (‘the Martin Report’). 4 The background to the Martin Inquiry — including an earlier inquiry conducted by Miles CJ pursuant to s 475 of the Crimes Act 1900 (ACT) — is set out in the Martin Report [16]–[32]. 5 Prior to the Martin Inquiry, between June 2000 and September 2012, there had been a number of applications and appeals, which for present purposes it is unnecessary to describe. See Martin Report [20]–[32]. 6 Eastman v DPP [No 2] (2014) 9 ACTLR 178 (Rares and Wigney JJ, and Cowdroy AJ). 7 R v Eastman [No 9] [2016] ACTSC 69 (‘Stay Reasons’). 8 See Supreme Court Act 1933 (ACT) s 37E(4); Court Procedures Rules 2006 (ACT) r 5311. ii. Ashley AJ failed to place any or any sufficient weight on the matters which tend to compromise the fair presentation and consideration of the [applicant’s] defence at any retrial, and failed to consider the combined force of those matters; iii. Ashley AJ failed to place any or any sufficient weight on the matters which mean that a retrial is unjustifiably oppressive to the [applicant], and failed to consider the combined force of those matters; iv. Ashley AJ failed to place any or any sufficient weight on the matters which mean that a retrial of the [applicant] tends to bring the administration of justice into disrepute, and failed to consider the combined force of those matters; v. Ashley AJ erred in concluding that the alternative hypothesis to be advanced by the [applicant] at any retrial amounted to no more than speculation; vi. Ashley AJ took into account an irrelevant consideration, namely the fact that the [applicant] had relied on similar arguments in contending that no retrial should be ordered by the Full Court in Eastman v Director of Public Prosecutions [No 2] (2014) 9 ACTLR 178; vii. Ashley AJ erred in assessing the significance of the failures of the prosecution to disclose relevant material by: a. failing to take into account the conduct of Victoria Police; b. failing to take into account the significance of adverse curial and coronial findings regarding the witness Mr Barnes; c. misinforming himself of the nature of Mr Barnes’ conduct at the Victorian State Forensic Science Laboratory and the circumstances of his departure from employment with Victoria Police; and d. discounting the significance of the prosecution's inadequate disclosure by reference to the conduct of the defence at the first trial, and in particular the failure of the defence to conduct its own inquiries into the work of Mr Barnes.
The background facts
As we have mentioned, Mr Winchester was assassinated at about 9:15 pm on 10 January 1989. He was shot twice in the head at close range.
Shortly before he was shot, Mr Winchester had departed from his normal routine, and had visited his brother in Queanbeyan. It is thus improbable that the assassin was aware of Mr Winchester’s likely movements.
At the time that he was shot, Mr Winchester was apparently in the process of alighting from his car, which was parked in his neighbour’s driveway.
Mr Winchester’s wife gave evidence that she heard her husband’s car at about 9:15 pm. A short time later she heard noises which sounded ‘like sharp stones coming up on to the front of the window’. Mrs Winchester said that there were two distinct sounds, the second following immediately upon the first. It might be inferred that the sounds that she heard were the two shots that killed her husband. When her
9 The evidence at trial and details of some of the applicant’s behaviour in the course of the trial are set out in the Martin Report ([33]–[37]) and in the reasons of the Full Court of the Federal Court on the conviction appeal: Eastman v The Queen (1997) 76 FCR 9, 13–38. husband had not come into the house, Mrs Winchester went looking for him. She found his body slumped behind the steering wheel, with one foot on the ground. The driver’s door of the car was open; the transmission was in ‘park’; and the car’s lights had been turned off.
Mr Winchester had been shot once to the back of the head and once to the face on the right side. Medical evidence suggested that the wound to the back of Mr Winchester's head occurred first and was likely to have caused death instantaneously. The Crown's case was that the shots had been fired from a .22 calibre firearm to which a silencer had been fitted, and that supersonic ammunition had been used. If the Crown was correct about the use of a silencer, the sound of the shots would have been muffled. Use of a silencer would also explain the manner in which Mrs Winchester described the sounds that she heard.
Police attended the scene and searched the immediate area. They found two ‘PMC’ cartridge cases. No firearm was located — and, indeed, the murder weapon has never been found — although microscopic examination of the two PMC cartridge cases by Superintendent Ian Prior led him to form the opinion that the murder weapon was a Ruger 10/22 rifle. As we understand it, Superintendent Prior’s opinion on this aspect was not challenged at trial by the defence.
Investigating police promptly sought the assistance of Robert Barnes from the 10 Victorian Forensic Science Laboratory (for convenience, ‘SFSL’ ). He arrived at the scene at about 3:00 am on 11 January 1989, and set about the collection and interpretation of gunshot residue (‘GSR’). Barnes took stub samples from both entry wounds and from selected areas of the car. Detective Sergeant Peter Nelipa also vacuumed the ground in the immediate area of the driver's door of the car. The applicant’s Mazda motor car was later impounded. Both Barnes and Detective Nelipa searched it for GSR on 18 January 1989. We will discuss the further evidence concerning GSR — and its importance to the applicant’s trial — when we turn to consider ground 7.
The Crown case was that the applicant had purchased the murder weapon — said to be a Ruger 10/22 rifle fitted with a silencer — from one Louis Klarenbeek. Klarenbeek gave police a statement, but died before the applicant’s trial. In the course of the trial, Detective Constable Karl Pattenden gave evidence that on 28 January 1989 he had shown Klarenbeek a photoboard containing (among several others) the applicant’s photograph, but that Klarenbeek claimed not to recognise anybody in the photographs.
Police traced the ownership of the Ruger back from Klarenbeek to a Noel King, who in turn had purchased it from a Fynus Caldwell. The evidence was that when King sold the rifle to Klarenbeek in October 1988 it was fitted with a telescopic sight and the barrel had been threaded to accommodate a silencer.
Caldwell took police to a place where he had sometimes engaged in target practice and rabbit shooting. Police there located a number of spent .22 calibre cartridge cases. Later, forensic examination by Superintendent Prior — a police officer experienced in ballistics — showed a close resemblance between nine of those cartridge cases and the two cartridge cases that had been found at the murder scene.
10 It underwent a name change in 1993: Stay Reasons [90] n 72, [100] n 75.
Police were also given seven .22 calibre cartridge cases by Klarenbeek, who said that he had recovered them from an area where he had test-fired the Ruger that he had purchased from King. Four of those cartridges were identified by Superintendent Prior as having been fired by firearms other than a Ruger. Of the remaining three cartridge cases, Prior concluded that two were ‘Stirling’ brand and one was a ‘CCI’ brand. Although none of the seven cartridges was PMC brand, Prior formed the opinion that one of the cartridges had been fired from the same rifle that had fired one of the PMC cartridge cases found at the scene of the murder.
Superintendent Prior’s conclusions were supported by other experts, including Special Agent Richard Crum of the United States Federal Bureau of Investigation; by Chief Superintendent Bernard Schecter, the head of the Investigations Department, Division of Identification and Forensic Science of the Israeli National Police; and by Barnes. Despite Prior’s opinion being supported by Barnes — whose evidence on other aspects was criticised in the Martin Report — there seems little doubt that the rifle used to kill Mr Winchester was the rifle that Klarenbeek had acquired through King from Caldwell. Apart from the evidence of an individual, Raymond Webb, however, there was no direct evidence that Klarenbeek had sold the rifle to the applicant. 11
It is convenient to set out Webb’s evidence by repeating the excellent summary provided in the reasons for judgment of the Full Court on the appeal against conviction:
Mr Webb gave evidence that he had seen an advertisement for the sale of various firearms that had been placed in the Canberra Times by Mr Klarenbeek on Saturday, 31 December 1988. On arrival at Mr Klarenbeek’s house in Queanbeyan that day he was shown several weapons, including a Ruger 10/22 rifle. He noticed that its barrel was threaded so that a silencer could be fitted and that it had a telescopic sight. There were three silencers on the table where Mr Klarenbeek was displaying items which he had for sale. Mr Webb said that as he was leaving Mr Klarenbeek’s premises another person arrived. It was necessary for Mr Webb to turn sideways so that the two men could pass on the pathway without colliding. He said he made eye contact, and the other person was not moving out of the way. He subsequently identified that person as the appellant. Mr Webb said that he returned to Mr Klarenbeek’s house on Thursday, 5 January 1989 and purchased a Tof .22 rifle. He then noted that the Ruger 10/22 was no longer on display. He said that Mr Klarenbeek did not require him to produce any type of licence. Shortly after the murder, following a television program in which the police appealed for information about Ruger rifles, Mr Webb contacted the police. He told them that he had seen one at Mr Klarenbeek’s house but he made no mention of the man who had arrived as he was leaving, nor did he refer to him when he gave a written statement to the police six months later on 28 August 1989. Much later in the year he saw, so he claimed, the appellant on television and recognised him as the man whom he had seen at Mr Klarenbeek’s house. In evidence-in-chief he said that he had not mentioned the other man when he first spoke to the police as he did not recall the subject being raised. However, he admitted that in his statement of 28 August he had falsely stated that whilst he was at Mr Klarenbeek’s house on 31 December 1988 ‘nobody else came to look at the rifle he had for sale …’. Mr Webb also repeated that statement when giving evidence on oath at the Inquest. He offered, as his explanation, that he did not want to get involved, that he had visited Mr Klarenbeek during his working hours without his employer’s permission and that he was scared for himself and his family. He also assumed that Mr Klarenbeek would have been able to identify the person who had bought the Ruger
11 So described in the Martin Report [35]. 10/22 rifle. It was not until sometime late in 1992 that Mr Webb told the police that he had 12 identified the appellant on television some three years or so earlier. ...
At trial, the applicant denied having purchased the rifle from Klarenbeek. There was, however, other evidence led by the Crown that pointed to the applicant as having bought the Ruger 10/22 from Klarenbeek. For present purposes, it is unnecessary to 13 set it out.
Evidence was also led at trial directed to the applicant’s history of employment and dispute with the Australian Public Service (‘APS’), and his adverse reactions to decisions which were not favourable to his attempt to gain re-entry into the APS. There was also evidence concerning the applicant’s history of aggression and violence, and his adverse response to a meeting with the deceased on 16 December 14 1988. Furthermore, listening devices installed in the applicant’s house had recorded the applicant speaking and whispering to himself, those maunderings 15 allegedly containing admissions of guilt.
As we have said, the foregoing is an incomplete summary of the evidence adduced at the applicant’s trial. It is, however, sufficient to set the scene for consideration of the issues raised by the present application.
The Full Court recorded the Director’s submission that the circumstantial case that remained against Mr Eastman turned upon the combination of eight strands of evidence to the effect that Mr Eastman:
• had a strong motive to kill Mr Winchester based on his having been charged, unjustly in his eyes, with assaulting his neighbour, Mr Russo, his frustration and disappointment with the outcome of his meeting with the deceased on 16 December 1988 and his receipt on the morning of the morning [sic] of the murder of the Commissioner’s letter refusing to overturn Mr Winchester’s decision not to intervene in the assault proceedings that were set down for hearing on 12 January 1989; • had made threats to kill Mr Winchester, among others, to his then solicitor in November or December 1988 and to Dr Roantree as well as having made other threats to kill including in his letter to his German pen friend in December 1987 shortly after being charged with the assault, and had made allegations in January 1989 that the executive in the police was corrupt. In addition, as Martin AJ found, the AFP had good reason to consider Mr Eastman to be a dangerous person because of his record of violent conduct ([1593]); • after being charged, had sought out and purchased guns in 1988, using a false name, had kept the telescopic sight from the first purchase from Mr Bradshaw when he returned the gun, and so did not subsequently purchase the offered telescopic sights when later buying other weapons, and had lost the use of the weapon he had hidden in the culvert when it was found and handed in to the police in May 1988; • had the means to kill Mr Winchester because of the evidence that linked Mr Eastman to the Klarenbeek weapon, including the circumstances concerning Mr Klarenbeek’s evidence at the inquest, that could not be led at the trial, that the Full Court discussed in the appeal (Eastman 76 FCR at 79E-80D); Mr Webb’s (very late) proffer of his evidence that identified Mr Eastman arriving at the Klarenbeek residence at about 8.30 am on 31 December 1988; Mr Webb’s evidence of his subsequent discussion with Mr Klarenbeek about the purchaser of the murder weapon not wanting a telescopic sight and the weapon having a silencer, Mr Eastman’s withdrawal of $200 from an ATM on 1 January 1989 and the sighting of a blue car, perhaps eight years
12 Eastman v The Queen (1997) 76 FCR 9, 16–17. 13 See ibid 17–19. 14 Ibid 19–24, 26. 15 Ibid 30–2. old, in Mr Klarenbeek’s street at 2.30 pm the previous day; the attempt of a male, who would not give his name, on 8 January 1989 to sell to Mr Reid a Ruger 10/22 rifle threaded to fit a silencer; Mr Reid’s later positive identification of Mr Eastman after once not having been able to identify him and on a second time doing so only tentatively; a statement by Mrs Klarenbeek tendered to the inquiry that, despite swearing to the inquest that he did not recognise the purchaser when shown a photoboard that included a photograph of Mr Eastman, her husband had told her that he had recognised the photograph of Mr Eastman as that of the purchaser; • had the opportunity to commit the murder. When interviewed by the police in the presence of his solicitor on the day after the murder, Mr Eastman had said that he had gone for a drive between 8 pm and 10 pm the previous night, but, despite his excellent memory and high intelligence, he implausibly asserted that he could not remember any details of where he had driven; • was linked to the murder scene by evidence that, on 8 January 1989, a witness saw what she said was a turquoise-bluey-green Mazda 626 sedan parked outside Mr Winchester’s house and that, as she walked past, the driver positioned himself so that he would not be seen and was still there when she returned from her walk. The witness remembered a registration number that had some similarity (two of the letters, but one in a different position, and two of the numbers) to Mr Eastman’s car’s registration and Carruthers AJ relied on this and other evidence to find that Mr Eastman had stalked the deceased’s premises; • had told, what the Director asserted were, lies indicative of a consciousness of guilt, including his non-recollection on 11 January 1989 of where he had driven on the previous night in the two hours between 8 pm and 10 pm; his denial of ever being in the deceased’s home’s street; his evidence that suggested that, in effect, assaults such as that with which he was charged in respect of Mr Russo were regarded as trivial and would not affect his readmission into the public service when he had told Dr Roantree that, if he had a criminal conviction, it would penalise his ability to be re-employed; his acceptance when giving evidence-in-chief, that he had written correspondence to his German pen friend in an exhibit tendered by the Crown where the exhibit included the December 1987 letter, in which he had made a threat to kill, whereas in cross-examination he initially said that he had not agreed that he had written the December 1987 letter that formed part of the exhibit and then suggested that it had been forged by the AFP, even though a handwriting expert had given unchallenged evidence that the letter was in Mr Eastman’s writing; his false accounts of why he needed to buy guns and then disposed of them and his assertion that he had disposed of the telescopic sight of the Bradshaw rifle in a bin after breaking it because it was already cracked, but then returned the weapon and empty box for the sight to Mr Bradshaw and paid him $20 for the value of the unreturned sight; after the situation with Mr Russo had diffused, his implausible explanation for having left the gun in the culvert without a magazine; and his false denial in the absence of the jury, so the Director contended, of the allegations in the Crown opening that he had purchased any firearms; and • had made admissions in the recordings set out in the report by Martin AJ at [1793] 16 and reproduced at [86] above.
16 Eastman v DPP [No 2] (2014) 9 ACTLR 178, 241–3 [216] (citations in original). 17 Ibid 248 [233]. 18 Ibid 250 [242]–[245]. the strength of the case against the applicant as a compelling consideration in favour 19 of a retrial.
Overview of the stay application and the Stay Reasons
Prior to the substantive hearing of the stay application, Ashley AJ conducted directions hearings and made a series of rulings on preliminary matters. The substantive hearing of the stay application itself occupied nine sitting days, between 8 and 18 February 2016, with the court sitting extended hours. The transcript of the hearing is 1,250 pages. The Stay Reasons themselves run to 266 pages.
There were seven broad areas of inquiry which Ashley AJ was required to address. They were: prosecutorial misconduct before, during and after the 1995 trial; strength of the Crown case; the effect of delay; the applicant’s personal circumstances; the effect of publicity; the expense of a new trial; and what were said to be changes in the nature of the Crown case.
The applicant’s contentions in relation to prosecutorial misconduct related to pre-trial non-disclosure and police harassment, the conduct of the trial itself, and non-disclosure after the trial. These matters had been dealt with in considerable detail in the Martin Report. Broadly, Martin AJ had found that relevant prosecutorial non-disclosure prior to and during the trial had occurred, but that it had been inadvertent. The applicant contested the conclusion concerning inadvertence and the relevant issues were largely re-litigated. Ashley AJ addressed the re-litigated issues of non-disclosure in very considerable detail, occupying some 150 pages of the Stay 20 Reasons. In substance, having undertaken this very substantial exercise, Ashley AJ reached conclusions which did not relevantly diverge from those of Martin AJ.
Considerable attention was also directed in the Stay Reasons to the issue of the strength of the Crown case, and issues relating to the alternative hypothesis in that context. These issues also occupy a very significant part of the Stay Reasons. Ashley AJ addressed all the matters relied upon by the applicant in considerable 21 detail.
The issues of delay, personal circumstances, publicity, expense of a new trial, and change of the Crown case were all also dealt with separately and in detail by
19 Ibid 264 [299]. 20 Stay Reasons [73]–[516]. 21 Stay Reasons [517]–[617]. Ashley AJ. The breadth of the matters his Honour was required to deal with should not be lost sight of. The matters raised on the application for leave to appeal were far more confined and, as will become apparent, involve some material refinements of the applicant’s case.
Principles governing the permanent stay of criminal proceedings
(1) A permanent stay of a proceeding may be ordered to prevent an abuse of process. The central question is ‘whether there is a fundamental defect “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair 23 consequences”’. (2) ‘Abuse of process’ encompasses not only circumstances within the narrow conception of that term — such as bringing a proceeding for an improper purpose, or pursuing a proceeding which is foredoomed to fail — but also the prosecution of a criminal proceeding in such a way as to make it unfair, an instrument of oppression. (3) ‘It is well established that the circumstances in which proceedings may be found to be 24 an abuse of process are not susceptible of exhaustive definition’. (4) A heavy onus lies upon an applicant for a permanent stay of proceedings to persuade a court to make the order sought. Grant of a permanent stay is a remedy which will 25 only be granted in a rare case, though see the significance of ‘rarity’ as explained in 26 Dupas v The Queen. In a case of alleged unfairness, a court should not order a stay unless it is satisfied that there are no other means, such as by directions of the trial 27 judge, of bringing about a fair trial. So, in Dupas v The Queen, the High Court said 28 this: Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’. (5) In determining whether an application for a permanent stay of proceedings should 29 succeed: A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the ‘social imperative’ as Nettle JA called it, as a permanent stay is tantamount to a continuing
22 Delay was dealt with in the Stay Reasons at [618]–[642], the applicant’s personal circumstances at [643]–[654], adverse publicity at [655]–[674], expense of a new trial at [675]– [690], and change of the Crown case at [691]–[762]. 23 R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ and Toohey J), their Honours referring to a passage in the judgment of Wilson J in Barton v The Queen (1980) 147 CLR 75, 111. 24 R v Edwards (2009) 255 ALR 399, 406 [33]; (2009) 83 ALJR 717, 723; and see the authorities there cited. 25 R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ, Toohey J); Walton v Gardiner (1993) 177 CLR 378, 392–3 (Mason CJ, Deane and Dawson JJ); R v Edwards (2009) 255 ALR 399, 406 [34]. 26 (2010) 241 CLR 237, 250 [35]. Set out below in this paragraph ... 27 R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ, Toohey J), cited in Dupas v The Queen (2010) 241 CLR 237, 245 [18]. 28 Dupas v The Queen (2010) 241 CLR 237, 250 [35] (citation omitted). 29 Dupas v The Queen (2010) 241 CLR 237, 251 [37] (citations omitted). immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed. What the Court there said calls to mind this observation of Brennan J in Jago v District 30 Court (NSW): If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law, and whether the legal right of an accused truly stated is a right to a trial as fair as the courts can make it. (6) The applicant for a stay must establish that the continuation of the proceedings would — not could — involve unacceptable injustice or unfairness or be so unfairly and 31 unjustifiably oppressive as to constitute an abuse of process. (7) Long delay of itself, absent evidence of prejudice to the defendant, is at the least very 32 unlikely to justify grant of a stay. (8) The absence or loss of evidence, or of potential witnesses, will not justify grant of a stay unless the lost evidence, or what the potential witnesses could have said, was likely to have had a significant effect on the trial. That is so even where the deficiency 33 can be attributed to poor work by the investigating authority. (9) Even a large amount of very unfavourable pre-trial publicity is extremely unlikely to justify grant of a stay of proceedings, for the reasons explained in Dupas v The 34 Queen. (10) The making or facilitation of illegal conduct may provide circumstances in which a 35 36 permanent stay will be granted. Ridgeway v The Queen and Moti v The Queen 37 were cases of that kind.
It remains to mention two matters. First, it will be appreciated that the principles described at [58](1)–(6) above are of general application, whereas the ·principles described at [58](7)–(10) address particular circumstances. The latter have been developed in proceedings in which the issue was delay, or loss of evidence, or publicity, or illegal conduct, as the case might be. But [the applicant] did not argue that any one of the
30 (1989) 168 CLR 23, 49. 31 Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ), cited in R v Edwards (2009) 255 ALR 399, 403 [23]. 32 Jago v District Court (NSW) (1989) 168 CLR 23; R v Edwards (2009) 255 ALR 399, 406 [34]; R v Birdsall [1997] NSWCCA 66; R v Fleming [2007] NSWSC 337; cf TS v The Queen [2014] NSWCCA 174. See also Ross v Tran (1996) 87 A Crim R 144, where a factor other than delay was held to justify a magistrate’s grant of a stay. 33 R v Smith [No 1] (2011) 218 A Crim R 52; Buddin J, in a very comprehensive and careful analysis, referred in the present connection, inter alia, to R v Helmling (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, 11 November 1993), R v Tolmie (Unreported, New South Wales Court of Criminal Appeal, Tobias JA, Hulme and Adams JJ, 7 December 1994), R v Hatfield [1999] NSWCCA 340, R v Ulman-Naruniec (2003) 143 A Crim R 531, R v Fleming [2007] NSWSC 337, Gilham v The Queen (2007) 73 NSWLR 308, R v Edwards (2009) 255 ALR 399, Aydin v The Queen (2010) 28 VR 588 and PG v The Queen [2010] VSCA 289. See also R v Goldburg (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Mahoney JA and Abadee J, 23 February 1993), Wells v The Queen [2010] VSCA 100, DPP v Brownlie & Brownlie (a Pseudonym) [No 2] [2015] VSCA 267, and, tangentially but usefully, Audsley v The Queen (2013) 228 A Crim R 98, 107-10 [43]–[55] (Kaye AJA). 34 (2010) 241 CLR 237. 35 (1995) 184 CLR 19. 36 (2011) 245 CLR 456. 37 Stay Reasons [58] (emphasis in original) (citations edited from original). matters upon which he relied would of itself make out his case for a stay. Because he relied upon a combination of circumstances, it may be said, I think, that authorities dealing with the situation where a particular circumstance was called in aid would not necessarily be decisive against him. On the other hand, authorities dealing with matters such as delay, lost evidence and adverse publicity are applications of the general principles which guide determination of permanent stay applications, and in my view they bear upon [the 38 applicant’s] application.
No proposed ground of appeal attacks these statements of the law. In our opinion they accurately summarise the principles which his Honour was called upon to apply.
We would wish to emphasise two further matters. The first goes to the fundamental reason why the exercise of the power to stay must be exceptional and the second goes to the particular position of a trial judge who is faced with a pre-trial application for a stay.
The exercise of the power to stay a prosecution must be exceptional because it effectively results in a refusal by the court to exercise jurisdiction and the primary responsibility for deciding whether criminal proceedings should be maintained lies 39 with the Executive and not with the court. 40
Next, as the judgment of the High Court in Dupas makes clear, there is a distinction between a prospective judgment as to whether a criminal proceeding should be stayed prior to trial and consideration by an appellate court after verdict of the question whether, having regard to the actual course of the evidence and directions at trial, the accused suffered a miscarriage of justice.
The present application fell to be decided at the pre-trial stage and in turn must be reviewed on the basis that the actual course of the evidence which may be adduced at trial and the steps that may be taken to avoid unfair prejudice to the accused are to some material extent uncertain. In these circumstances, the task confronting the applicant was to persuade the trial judge that nevertheless it must be concluded that 41 the trial will necessarily result in an abuse of process.
The assessment of that eventuality must be conditioned by recognition of the trial judge’s substantial powers to ensure a fair trial and direct juries as to their task of assessing the evidence fairly and in accordance with law:
Whilst the criminal justice system assumes the efficacy of juries, that ‘does not involve the 42 assumption that their decision-making is unaffected by matters of possible prejudice’. In Glennon, Mason CJ and Toohey J recognised that ‘[t]he possibility that a juror might 43 acquire irrelevant and prejudicial information is inherent in a criminal trial’. What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by
38 Ibid [71] (emphasis in original). 39 Jago v District Court (NSW) (1989) 168 CLR 23, 61 (Deane J), 76 (Gaudron J) (‘Jago’); R v FJL (2014) 41 VR 572, 575 [17] (Osborn JA, Redlich JA and Sifris AJA agreeing (at 589 [90] and 589 [92] respectively)). 40 Dupas v The Queen (2010) 241 CLR 237, 249 [18]–[19] (‘Dupas’). 41 R v Glennon (1992) 173 CLR 592; Walton v Gardiner (1993) 177 CLR 378, 392; R v Edwards (2009) 255 ALR 399, 403 [23]; Dupas (2010) 241 CLR 237, 250 [35]; Moti v The Queen (2011) 245 CLR 456, 465–6 [15]. 42 Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J). 43 (1992) 173 CLR 592, 603. See also Murphy v The Queen (1989) 167 CLR 94, 99. extraneous considerations. That capacity is critical to ensuring that criminal proceedings 44 are fair to an accused.
Principles applicable to an interlocutory appeal
Was the order of Ashley AJ an interlocutory order?
In our opinion, Ashley AJ’s dismissal of the application for a permanent stay was an interlocutory order. The proceeding is continuing and its final outcome is yet to be determined.
The critical question is whether the order made finally disposed of the rights of the 45 46 parties in the principal proceeding between them. It did not.
It neither precluded the applicant from making a further application for the same relief at a further stage of the hearing, nor resulted in a final disposition of the prosecution.
Moreover, insofar as authority supports the view that the grant of a stay on the basis 47 that a proceeding constitutes an abuse of process comprises an interlocutory order, 48 it follows a fortiori that the refusal of a stay has this character.
In turn, the Court must now consider whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a court of appeal and whether a substantial injustice would result if leave were refused on the assumption that the decision is wrong.
The tests guiding the exercise of the discretion to grant leave to appeal an interlocutory order in a criminal matter were summarised by Penfold J in Miles v The Queen:
The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows: (a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal. (b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong. (c) Whether a grant of leave would inappropriately fragment the criminal trial process. (d) Whether there are any exceptional circumstances that would justify a grant of leave 49 despite any fragmentation of the trial process.
44 Dupas (2010) 241 CLR 237, 248–9 [29] (citations in original). 45 Lincul v Corney (1976) 180 CLR 213, 225 (Gibbs J); Bienstein v Bienstein (2003) 195 ALR 225, 230 [25] (McHugh, Kirby and Callinan JJ); Re Luck (2003) 78 ALJR 177. 46 The order made in terms was ‘That the application by David Harold Eastman for a permanent stay of the proceedings is dismissed.’ 47 Tampion v Anderson (1973) 48 ALJR 11; Re Luck (2003) 78 ALJR 177, 179 [9]. 48 Nona v The Queen [2012] ACTCA 55 [22] (Refshauge J). 49 [2013] ACTCA 52 [11]. The discretionary nature of the order in issue
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the 50 administration of justice. 51
The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not 52 suspicion, in the public mind.
It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed … Fairness or unfairness has been said to defy ‘analytical definition’ and to ‘involve an 53 undesirably, but unavoidably, large content of essentially intuitive judgment’.
The discretionary nature of the decision of Ashley AJ limits the basis on which it can 54 now be challenged. 55
In R v Carroll, Gaudron and Gummow JJ said:
The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the 56 materials for so doing.
50 (1993) 177 CLR 378, 395–6 (emphasis added) (citation omitted). 51 (2004) 79 ALJR 116, 122 [25] (citation in original). 52 Jago (1989) 168 CLR 23, 50. 53 Subramaniam v The Queen (2004) 79 ALJR 116, 122–3 [26]–[27] (emphasis added) (citations omitted). 54 R v Glennon (1992) 173 CLR 592, 600. 55 R v Carroll (2002) 213 CLR 635, 657 [73] (citation in original). 56 House v The King (1936) 55 CLR 499, 505. not be able to infer that there has been a failure to exercise the discretion properly 57 unless it is plainly unjust.
In Australian Coal & Shale Employees Federation and Commonwealth, Kitto J stated 58 the principles governing an appeal concerning a discretionary decision: 59 I shall not repeat the references made in Lovell v Lovell to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which the appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists of acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first 60 instance.
These principles have been applied in a number of decisions concerning refusal by a 61 trial judge to grant a stay of a criminal prosecution.
Apprehended bias (Ground 1)
Proposed ground 1 of the application for leave to appeal contends that a fair-minded lay observer might reasonably apprehend that Ashley AJ might not have brought an impartial mind to the resolution of the stay application.
The applicant’s submissions set out what he contends to be the applicable legal principles in six paragraphs. The respondent adopted these paragraphs as representing an accurate summary of the law regarding apprehended bias. The relevant paragraphs (with the authorities cited in square brackets) read as follows:
The High Court has made clear that a judge will be disqualified for apprehended bias if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. [Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ ).] That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited, lest the integrity of the judicial system be undermined. The test requires no conclusion about what factors actually influenced the outcome of Ashley AJ’s decision. No attempt need be made to inquire into his Honour’s actual thought processes. The test requires the identification of what it is said might have led his Honour to decide a case other than on its legal and factual merits (step one). There must also be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (step two). [Ebner at [8].]
57 House v The King (1936) 55 CLR 499, 505. 58 Australian Coal & Shale Employees Federation and Commonwealth (1953) 94 CLR 621, 627 (citations in original). 59 (1950) 81 CLR 513, 532–4. 60 House v The King (1936) 55 CLR 499, 504–5. 61 For example, R v H (2002) 132 A Crim R 551; Petroulias v The Queen (2007) 176 A Crim R 302; R v Lipton (2011) 82 NSWLR 123; R v FJL (2014) 41 VR 572; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; Clark (a pseudonym) v The Queen [2016] VSCA 96. The test is one of possibilities (real and not remote), not probabilities. [Eastman v The Queen [2015] ACTCA 24 at [30].] The test involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy to draw. [Ibid, at [1].] An apprehension of bias may arise on what could be regarded as a fairly low threshold of satisfaction — reasonableness is the element to be stressed. [Kwan v Kang [2003] NSWCA 336 at [82].] The test requires the identification of what might affect the judge's impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand. [Ibid, at [32].]
The respondent submits that there is an additional relevant legal principle, which is that the hypothesised lay observer would, ‘before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to 62 the extent necessary to make a fair judgment’.
We adopt the agreed principles set out in the submissions, and the additional relevant legal principle referred to by the respondent. The agreed submissions accurately reflect the authorities cited and, in relevant respects, what was said to be the ‘well settled’ relevant principles governing the issue of apprehended bias set out by the 63 Victorian Court of Appeal in AJH Lawyers Pty Ltd v Careri. There are some additional principles set out by that Court which are also relevant. They are:
(a) When one of the grounds of appeal is apprehended bias, the Court of Appeal needs to deal with that ground first, and, if it is established, remit the matter, even if the Court of Appeal is satisfied that the decision below is correct on the 64 merits.
(b) The relevant apprehension, where apprehended bias is alleged, is an apprehension that the judge will not decide the case impartially, not merely an 65 apprehension that he or she will decide the case adversely to one party.
(c) The perception of a lay observer will not be as informed as the perception of a lawyer but the fictional lay observer is not to be assumed to be ignorant of the dynamics of modern judicial practice and, in particular, that modern judges are not expected to await the end of a case before considering the issues, and that they will often form tentative opinions on matters in issue which may be 66 expressed so as to give counsel the opportunity to deal with them.
(d) There is a line to be drawn between indications of a tentative view and an impermissible indication of pre-judgment. A key factor in determining whether the line has been crossed is the extent to which the views expressed appear 67 final rather than merely tentative.
62 Citing British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 306 [47] (French CJ); Johnson v Johnson (2000) 201 CLR 488, 508–9 [53] (Kirby J). 63 (2011) 34 VR 236, 241–3 [17]–[25]. 64 Ibid 241 [18]. 65 Ibid 242 [21]. 66 Ibid 243 [23]. 67 Ibid 243 [24]. matter and the feared deviation. In relation to this process the High Court in Michael Wilson & Partners Ltd v Nicholls said:
As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been ‘the crystallisation of that apprehension in a demonstration of actual prejudgment’ impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or 68 otherwise, demonstrates prejudgment.
Material relied upon in relation to apprehended bias
Somewhat unusually in an application of this kind, almost all of the material relied upon in relation to apprehended bias was drawn from the Stay Reasons.
It was contended that in the Stay Reasons Ashley AJ made, in effect, the following ten statements (the numbers in square brackets refer to paragraph numbers in the Stay Reasons):
(a) after being convicted, the applicant acted vexatiously or improperly in commencing numerous and broad proceedings challenging his murder conviction: [2], [4].
(b) applications made by the applicant and his conduct (via his representatives) in the lead up to and during the stay application proceeding were designed to delay and distract from the stay application, and were unmeritorious or vexatious: [16], [20]–[35], [252]–[253], [385], [502].
(c) the applicant (via his representatives) conducted the stay application itself in a manner that was unnecessarily exhaustive and broad, seeking to combine insignificant matters, some of which were without merit, into a potentially misleading whole: [47].
(d) the applicant’s decision to appeal Ashley AJ’s decisions in Eastman [No 5] and Eastman [No 6]. were designed to delay and distract from the issues, and were unmeritorious or vexatious: [20] (footnote 11), [37] (footnote 18).
(e) the applicant’s reliance (via his representatives) on matters that have been mentioned in previous proceedings since his 1995 conviction, and the raising of matters which have otherwise been known to the applicant for some time, was vexatious or unmeritorious: [47], [229], [385], [520], [602], [607], [608].
(f) the ‘alternative hypothesis’ relied on by the applicant is speculative, fanciful, and ought to be dismissed as a credible explanation for the murder: [9], [16], [521], [522], [602], [605], [607], [611], [612].
68 (2011) 244 CLR 427, 446–7 [67] (Gummow A-CJ, Hayne, Crennan and Bell JJ) (citations omitted). (g) the applicant ought to be blamed for the chaotic circumstances of his 1995 trial: [636], [639].
(h) despite being released after serving 19 years following a wrongful conviction, the applicant, now on bail, is at an ‘advantage’: [654]; and
(i) a judicial inquiry into the applicant’s conviction, at least of the scope of the Martin Inquiry, was unnecessary and reflected a loss of perspective: [4], [20] (footnote 10).
We will refer to these complaints as ‘Stay Reasons complaints’.
The applicant also relied upon four additional matters in support of this proposed ground. The applicant’s written submission sets them out as follows (the footnotes to the submissions, which contain submissions themselves, are in square brackets):
(a) comments made by Ashley AJ on 19 November 2015 and 26 November 2015 regarding the confidential section of the Martin Report; [Transcript, 19 November 2015 at p 13–14 (relating to his Honour’s opinion of how the confidential section of the report and the associated documents are ‘not going to take anyone very far’; p 13, [44], and that the parties who receive the confidential section of the report will be ‘bitterly disappointed’ at its content; p 13, [35]). Transcript, 26 November 2015 at p 86–87.] (b) the decisions of Eastman v The Queen [No 3] [[2015] ACTSC 364 [8] — by considering the ‘real question’ whether Martin AJ ought to have received the fresh evidence, when neither party has raised this issue, the impression is gained that Ashley AJ considered that Martin AJ ought not to have received the evidence and thus these circumstances diminish its weight in its capacity to substantiate the alternative hypothesis.] R v Eastman [No 6] [[2015] ACTSC 377 [42], [44], and [45].] (c) transcript of the hearing of 27 January 2016 regarding public interest immunity claims concerning the Trenery Informant; [Transcript of 27 January 2016 p 27, [28]–[29]; p 28, [3]–[8]; and p 30 [14]–[21].] (d) comments made in the hearing of the appellant’s application on 5 April 2016 (that his Honour refrain from delivering judgment until outstanding public interest immunity claims were determined). [Transcript of 5 April 2016, p 1270, [3]–[12]; p 1271 [30]–[44].]
We will refer to these complaints as ‘additional complaints’.
The matters relied upon by the applicant may be divided into the following four categories:
Complaints about the way in which Ashley AJ dealt with relevant issues raised by the stay application and which it was necessary for him to address in order to determine the application. Stay Reasons complaints (e), (f), (g) and (h) fall into this category.
Complaints about observations made by Ashley AJ in relation to the conduct of the stay application itself. Stay Reasons complaints (b), (c) and (d) and additional complaint (b) fall into this category. 3. Complaints about observations by Ashley AJ as to the history of the matter prior to the stay application. Stay Reasons complaints (a) and (i) fall into this category.
Observations by Ashley AJ of a general character in the course of the hearings. Additional complaints (a), (c) and (d) fall into this category.
Submissions
In the applicant’s written submission it was contended that the statements which the judge made meant a fair minded reasonable bystander might conclude that he had formed a ‘pervasive negative view’ about the applicant; his conduct in the 1995 trial; his conduct in custody; and his conduct in relation to the litigation, both generally and in relation to the stay application itself. It was submitted that the Stay Reasons give ‘the impression’ the applicant is vexatious and manipulative.
It was submitted by the applicant that the fact that the judge formed this negative view, despite the applicant’s conviction having been quashed, is ‘telling’.
The applicant submitted that comment made by Ashley AJ to the effect that he considered that arguments had been advanced on the applicant’s behalf regardless of their merit was ‘tantamount to presuming that the arguments advanced were undeserving of serious consideration’.
The applicant submitted that if the judge ‘might have held the views asserted’, the reasonable bystander might apprehend he would not have properly considered the factors militating in favour of, and against, a stay.
In the course of the development of the submissions orally, counsel for the applicant particularly focused upon a statement at [20] of the Stay Reasons where the judge said that prior to the stay application the applicant had vigorously pursued various issues ‘apparently regardless of their individual merit or otherwise’, and upon a statement made at [385] of the Stay Reasons, where, in the course of rejecting a submission by the applicant concerning the evidence of Dr Roantree, the judge said that the matter put seemed very likely to have been a ‘new and intendedly ingenious twist upon an old story, a not uncommon occurrence in the conduct by [the applicant] of his litigation over the years’.
All of the particular complaints concerning the Stay Reasons were separately addressed orally. Whilst they were relied upon individually, counsel for the applicant also emphasised the cumulative impact of all of the aspects of the Stay Reasons upon which the applicant relied. There were no oral submissions addressed to the additional complaints.
The respondent submitted that the statements relied upon had to be read in the context of the full Stay Reasons. The respondent also relied upon expressions of disapproval which the judge had addressed to the Crown, upon a list of assumptions said to be ‘most favourable’ to the applicant which the judge had adopted, and upon the agreed basis upon which the application had been argued to the effect that the judge should not depart from the findings made in the Martin Report without good reason, notwithstanding which many matters dealt with by the Martin Report were re-agitated before the judge without advancing the applicant’s case.
The respondent submitted that the fact that the judge, on the material before him, came to a conclusion regarding the applicant’s conduct, or regarding other matters put on the applicant’s behalf, that was not favourable to the applicant did not indicate apprehended bias.
Stay Reasons complaints — the ‘effect’ of passages in the Stay Reasons
All of the Stay Reasons complaints cite specified paragraphs of the Stay Reasons and assert what is said to be the ‘effect’ of what was said. It is necessary to briefly highlight some differences between what is said in the Stay Reasons and what is asserted to be the ‘effect’.
In relation to Stay Reasons complaint (a), it is asserted that the ‘effect’ of the passages relied upon is that the applicant had acted vexatiously or improperly in commencing proceedings challenging his murder conviction. What the judge said was that the processes of appeal and review had been ‘seemingly endless’ and that ‘no less than 19 matters’ were the subject of the Martin Inquiry.
In relation to Stay Reasons complaint (b), it is asserted that the ‘effect’ of the passages relied upon was that the applicant had conducted the stay proceeding in a manner designed to delay and distract and raising issues which were unmeritorious or vexatious. The passages relied upon refer to the application for the removal of Whealy AJ on the basis of bias; to what the judge considered to be a ‘loss of perspective’ by both the applicant and the respondent in the context of which the judge said that the applicant had pursued various issues before the judge could come to the stay application ‘apparently regardless of their individual merit or otherwise’; to an incident during the course of the hearing which the judge considered to be unsatisfactory relating to reliance upon a psychiatric report; to the manner in which objections to the respondent’s proposed reliance upon the statements of deceased witnesses had been dealt with by the applicant and which the judge had considered to be extremely unsatisfactory; and to an article in the Canberra Times which the judge also considered to be extremely unsatisfactory. Reliance is also placed upon a comment made by the judge concerning the ‘mental agility’ of barristers, and upon his analysis of certain of the cross-examination. Reliance is placed upon the observation made by the judge concerning the issue of Dr Roantree’s evidence and what the judge perceived was a variation in the nature of the complaint made on the applicant’s behalf concerning that evidence which he described as a ‘new and intendedly ingenious twist’ upon an old story and which he observed was a ‘not uncommon occurrence’ in the applicant’s litigation. Reliance is also placed upon the judge’s analysis of the assumptions which would need to be made in order to uphold a particular submission of the applicant concerning the evidence of the witness Martz.
In the passages relied upon in relation to Stay Reasons complaint (b) the judge was certainly very critical of the applicant’s conduct in relation to the matters he set out. He did not say that the conduct had been designed to delay or distract but he made it clear that in his view it had had that effect. He did not say issues had been raised vexatiously but he did say that he considered that matters had been raised by the applicant prior to the substantive stay hearing without regard of their merits.
69 [2015] ACTSC 376 (‘Eastman [No 5]’). 70 [2015] ACTSC 377 (‘Eastman [No 6]’). hypothesis did not rise above speculation. That particular conclusion was not relied upon in the written submission. The written submission relied upon specified parts of the prior analysis. In the course of oral submissions the conclusion that the alternative hypothesis did not rise above speculation was also referred to in the context of the apprehended bias ground. The only element of the analysis in the passages relied upon where the judge used the word ‘fanciful’ was in relation to an argument concerning what was described as the ‘second Ruger’ which the judge said had ‘fanciful elements to it’. No oral submissions were directed to that particular matter.
In relation to Stay Reasons complaint (g), it is asserted that the judge made comments to the ‘effect’ that the applicant ‘ought to be blamed for the chaotic circumstances of his 1995 trial’ and that this is in contrast to the conclusions in the Martin Report at [1780]–[1789]. In the passages relied upon the judge referred to the chaotic circumstances of the 1995 trial and observed that they were circumstances ‘for which [the applicant] bears significant blame’. He also observed that the defence’s failure to properly prepare for the forensic evidence at the trial had been ‘partly due’ to the applicant’s sacking of one of his legal advisers at the time.
In relation to Stay Reasons complaint (h), it is asserted that the judge had described the applicant’s bail as an ‘advantage’ in circumstances where the applicant had been released after serving 19 years following a wrongful conviction. The judge observed, in the context of addressing the relevance of the fact that a return to prison would be difficult for the applicant, that the applicant had ‘had the advantage of a grant of bail after the quashing of his conviction and despite there being an order for a re-trial, a regime which is most uncommon’. He then went on to observe that the quashing of a conviction after such a long period of time was unusual and that that explained the grant of bail.
In relation to Stay Reasons complaint (i), it is asserted that the judge made comments to the ‘effect’ that a judicial inquiry of the scope of the Martin Inquiry had been unnecessary and reflected a loss of perspective. The same passage previously referred to concerning loss of perspective in the litigation was relied upon. The judge’s reference to ‘no less than 19 matters’ having been referred to the Martin Inquiry was also relied upon. Nowhere is it said in the Stay Reasons that the Martin Inquiry was unnecessary or that the Martin Inquiry reflected a loss of perspective.
Analysis of complaints concerning findings on issues raised in the stay application — Stay Reasons complaints (e), (f), (g) and (h)
The complaints made concerning what is said to be the effect of comments made when addressing issues the judge was required to decide, or to at least address, in order to determine the stay application, are unusual in the context of a claim of apprehended bias. This is because apprehended bias is usually concerned with extraneous factors that are said to lead to an apprehension that issues will not be, or were not, determined on their merits. These complaints concern the determinations themselves.
What is said in a judgment may reveal the existence of apprehended bias. The High 72 Court decision in Vakauta v Kelly provides an example. In that case the judge
71 Stay Reasons [616]. 72 (1989) 167 CLR 568. expressed preconceived views in relation to particular witnesses in his judgment, based on his experience in unrelated matters. He had expressed the same preconceived views during the hearing. That extraneous matter (his preconceived views) could have been seen to have influenced his determination of the relevant issues and that appeared from the judgment itself.
It is not contended here that the judge had preconceived views in this sense. The relevant complaints concern conclusions which he reached on the material which was before him, on issues he was required to decide. Of course, a judge could express conclusions on issues he or she was required to decide in terms which might give rise to apprehended bias. Counsel for the applicant referred us to what was said to be an example, being a decision of Mildren J in the Supreme Court of the Northern Territory 73 in Brittain v Plochoros. In that case, in the course of a judgment, a magistrate had rejected the evidence of a motor car trader observing that he was ‘the archetypal car salesman … a person not to be trusted’. The magistrate had also made observations in the course of dealing with the claim on issues as to which there was no evidence. The claim of apprehended bias was upheld on the basis of the reference made by the 74 magistrate to what the judge described as ‘irrelevant stereotypes’. This case was, on analysis, another example of the intrusion of preconceived views (the honesty of car salesmen), not unlike the position in Vakauta v Kelly.
The first series of passages relied upon, constituting Stay Reasons complaint (e), concern matters which had been raised by the applicant in previous proceedings. It is contended that the judge found those matters to be vexatious or unmeritorious. It is true that he found some of them to be unmeritorious. It is true that he expressed negative views as to the repetition of what he had concluded were the unmeritorious matters. He did not find, in effect or otherwise, that they were vexatious. It was not suggested that any of the factual matters set out in the passages relied upon were untrue.
Particular reliance, in relation to this complaint (Stay Reasons complaint (e)) and others, was placed upon observations made by the judge on the overall task to be undertaken. At [47] of the Stay Reasons the judge said:
The significance of that submission is as follows: As will be seen, [the applicant] subdivided his argument with respect to circumstances (1) and (2) into numerous sub-categories, each of which he exhaustively explored. In order to deal with all of his submissions, and with the [the respondent’s] responses, I address, in what follows, each matter raised — often enough in great detail. But I have never lost sight of the single question requiring my determination: has [the applicant] satisfied me, in the totality of the circumstances, that he should have the relief which he seeks? This has presented a somewhat difficult task because there is, I think, a tendency to fasten onto ‘a pinch of this’ and ‘a skerrick of that’ and so build up a picture which, if one ignored the totality of the matter, might well mislead; and even a tendency to think that the sheer number of matters raised by [the applicant] — regardless that I have concluded that some of them lack any merit (they include matters which he has unsuccessfully raised again and again in the past) — means that there must be something to his stay application.
73 (1997) 6 NTLR 136. 74 Ibid 141. made, having heard the entire application. Judges often make observations about the conduct of cases before them. If they are wrong in what they say, there are avenues of review or appeal. What the judge said in this passage was relevant for the reason which the judge gave. He was concerned that the sheer volume of matters raised, regardless of their individual merit, might mislead. It was not wrong for him to make that observation, and he correctly articulated the fundamental issue which he had to decide. He went on to deal with every matter raised by the applicant in considerable detail, as he had foreshadowed that he would. What he said in this paragraph, viewed alone, does not give rise to any apprehended bias.
Amongst the passages in the Stay Reasons relied upon in relation to Stay Reasons complaint (e) was the judge’s treatment of one submission by the applicant concerning the evidence of Dr Roantree and the statement the judge made in that context that what was put seemed very likely to be ‘a new and intendedly ingenious twist upon an old story, a not uncommon occurrence in the conduct by [the applicant] of his litigation over the years’. In oral submissions that express statement was particularly relied upon. We will deal with that express statement separately.
Leaving to one side for the moment what was said about the argument put concerning Dr Roantree, the passages relied upon in relation to Stay Reasons complaint (e) constitute determinations the judge made on issues he was required to determine. In themselves, they do not give rise to any apprehended bias. We do not overlook the applicant’s reliance on the combined effect of all the passages 75 complained of, and we will also address that matter separately.
An assessment of the strength of the alternative hypothesis, the subject of Stay Reasons complaint (f), was fundamental to the applicant’s stay application. The judge was required to assess the evidence in relation to it and had to make findings about it. He did so. Those findings, somewhat inaccurately portrayed in the applicant’s complaint, are said to constitute apprehended bias. In isolation, they do not. The issue of whether the judge made an error of some kind when concluding that as matters presently stood he did not consider that the alternative hypothesis rose above speculation (a matter not relied upon in relation to apprehended bias in the written submission) is a matter to be addressed under proposed ground 5. It does not give rise to apprehended bias.
As to Stay Reasons complaint (g), the applicant’s case on the stay application relied heavily upon what had occurred during his 1995 trial. Criticism of the conduct of the prosecution in that trial was fundamental to his case for a stay. The applicant argued that the prosecution was to blame for the fact that the deficiencies in the evidence of the witness Barnes were not revealed in the 1995 trial. In that context, the judge was required to address the submission put on behalf of the respondent that the applicant’s own conduct was the reason, or a reason, why the deficiencies in relation to Barnes’ evidence had not been revealed. The judge was required to make findings 76 on these issues and he did so. His findings reflect those of the Full Federal Court,
75 In Downey v Acting District Court Judge Boulton [No 5] (2010) 272 ALR 705, 748 [176], Basten JA (with whom Allsop P and Macfarlan JA agreed) said: ‘In a case where numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively.’ 76 Eastman v The Queen (1997) 76 FCR 9, 32–7. 77 78 the Martin Inquiry and the Court of Appeal. There is no basis for a conclusion of apprehended bias in these findings.
Finally, in this context, the applicant relies upon the finding or observation, that the applicant had had the ‘advantage’ of a grant of bail, in Stay Reasons complaint (h). The contention that the use of the word ‘advantage’, in the context, reveals the existence of apprehended bias is untenable.
The complaints made in this category (Stay Reasons complaints (e), (f), (g) and (h)) concern findings made by the judge on issues he was required to decide. Leaving to one side for the moment what was said concerning the evidence of Dr Roantree and the reliance on the combined effect of all the complaints, we reject the contention that based upon the passages relied upon a fair minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of these issues. The applicant might disagree with the findings made. That is a different issue. If the findings are flawed, they can be challenged. These findings do not reveal the existence of pre-judgment or any other basis for a relevant apprehension that the judge had decided the issues otherwise than on the merits based on the material before him.
Analysis of complaints concerning observations made as to the conduct of the stay application — Stay Reasons complaints (b), (c) and (d) and additional complaint (b)
In Stay Reasons complaint (b) it is asserted that Ashley AJ made comments to the effect that the stay application had been conducted by the applicant in a way designed to delay and distract by making applications which were unmeritorious or vexatious. The judge did not say any of the applications were vexatious. He did say some were unmeritorious. He did make it clear that he considered that some had had the effect of delaying and distracting the stay application. He did not say that they were designed to do that.
The judge said at [20] of the Stay Reasons that matters he had been required to rule upon before the stay application had been pursued ‘apparently regardless of their individual merit or otherwise’. In the course of oral submissions the applicant particularly focused upon that express statement, and upon the reference made by the judge immediately after it to the appeals the applicant had brought in Eastman [No 5] and Eastman [No 6]. We will deal with that complaint, as articulated in oral submissions, separately.
As to Stay Reasons complaint (b), the judge did make the observation about a loss of perspective in the litigation (previously quoted), and then directed criticisms to both the applicant and the respondent. The judge also set out in detail what he considered to be have been unsatisfactory events which had occurred during the hearing. It was appropriate for him to do so. It was not suggested that there were any factual errors in what he said.
Stay Reasons complaint (c) relies again on paragraph [47] of the Stay Reasons which we have quoted in full above. We will not repeat our analysis of that paragraph.
77 Martin Report [34], [748]–[770], [1772], [1784]–[1788]. 78 Eastman v DPP [No 2] (2014) 9 ACTLR 178, 263 [293].
Stay Reasons complaint (d) asserts that the judge made a comment to the effect that the appeals in Eastman [No 5] and Eastman [No 6] were designed to delay and distract from the issues and were unmeritorious or vexatious. It suffices to say that he made no such comment about design. We will address what the judge said about the appeals in Eastman [No 5] and Eastman [No 6] further when dealing with the complaint, particularly relied upon in oral submissions, as to the judge’s statement that issues had been pursued prior to the stay application ‘apparently regardless of their individual merit’.
Additional complaint (b) relies upon an observation made by the judge as to a legal 79 issue in Eastman v The Queen [No 3], and observations relating to the procedural history set out in Eastman [No 6]. The procedural history was accurate. These observations give no basis for a conclusion of apprehended bias.
Leaving to one side for the moment the complaint regarding the statement as to pursuit of matters ‘regardless of their individual merit’, and the reliance on combined effect, the complaints in this category do not give rise to apprehended bias. The judge was entitled to explain circumstances which had occurred during the course of the proceeding which had had the effect of dislocating or delaying the substantive matter. It was not suggested that any factual matter he set out was inaccurate.
Complaints as to observations concerning the history of the matter — Stay Reasons complaints (a) and (i)
Complaint is made that the judge observed that the appellate and review process in relation to the applicant’s conviction had been ‘seemingly endless’. The judge relied upon the summary in the Martin Report. It was not contended that that was inaccurate, but the gravamen of the complaint was that this observation, said in oral submissions to be ‘cynical’, was made in circumstances where it was only after this protracted process that a miscarriage of justice had been eventually revealed.
It is true that the very protracted legal processes had eventually revealed that there had been a miscarriage of justice at the 1995 trial. In substance, the basis of that miscarriage was one matter, being the non-disclosure of information casting doubt on the veracity and reliability of Barnes. The additional relevant matter which led to the quashing of the conviction (concerning the alternative hypothesis) relied upon new evidence. It might be said that the judge’s remark was perhaps insensitive. It was not inaccurate. It did not reveal apprehended bias.
Complaint is made that the judge referred to the matters upon which Martin AJ was directed to inquire by describing them as ‘no less than 19’. There were no less than nineteen. Fourteen of the nineteen were found not to give rise to any doubt as to the conviction. The judge summarised the position in the Stay Reasons, and that summary was accurate.
Subject to the matters to which we will return, the passages relied upon in this category would not lead a fair minded lay observer to reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the relevant questions.
79 [2015] ACTSC 364 (‘Eastman [No 3]’). Observations of a more general character in the course of hearings — additional complaints (a), (c) and (d)
Additional complaint (a) concerns observations the judge made as to the significance of the confidential section of the Martin Report. These observations seem to us to be the kinds of tentative observations made in the course of a hearing which are entirely unremarkable.
The written submission in relation to this complaint also included a bland reference to ‘Transcript, 26 November 2015 at p 86-87’. No submission was directed to that transcript. We have nevertheless looked at it. It contains criticism of the applicant’s lawyers over the timing of an application.
There is no basis for a finding of apprehended bias in additional complaint (a).
Additional complaint (c) concerns observations as to the strength of particular matters relied upon as well as observations as to the manner in which the proceeding was being conducted. In this context it is relevant that the judge also directed critical remarks to the respondent from time to time. There is no substance in these complaints.
Additional complaint (d) relies upon passages in a ruling made on 5 April 2016, not in the hearing as the complaint suggests. In the first passage (transcript page 1270, [3]–[12]) the judge recounts some procedural history, and in the second (transcript page 1271, [30]–[44]) he makes statements concerning the subject matter of certain subpoenas, in the context of issues of timing. No submissions were addressed to these passages. They do not constitute a basis for any relevant apprehension of bias.
Waiver
Pursuit of matters ‘regardless of merit’
It very soon became apparent to me [So much was evident on reading the unredacted version of the Martin Report, which I did with the consent of the parties at an early stage.] that there had been a great loss of perspective in this litigation. [The applicant] vigorously pursued various issues, before I was able to come to the stay application, apparently regardless of their individual merit or otherwise, and presumably regardless of cost. I was called upon to give a series of rulings, several of which were the subject of appeal by [the applicant]. [R v Eastman [No 5] [2015] ACTSC 376; R v Eastman [No 6] [2015] ACTSC 377. Leave to appeal was granted by a single judge in early February 2015. But the appeals were discontinued on 10 March, very soon after a date for their hearing was fixed and the parties had been so advised]. For its part, the [respondent] gave notice that it would seek to rely, at a re-trial, upon certain evidence which had not been adduced at the trial, or which had been adduced for a different purpose. It sought to deploy some of that evidence on the stay application. Again, the [respondent] delayed in deciding whether it was in a position to adduce new forensic evidence on a re-trial. [Apparently, this came to nothing]. As indicated earlier, the submissions concerning apprehended bias as developed orally focused upon two passages in the Stay Reasons. One of those passages was the judge’s statement that the applicant had pursued various issues before the judge was able to come to the stay application ‘apparently regardless of their individual merit or otherwise’.
Before turning to the submissions made about this statement it is necessary to say something about the issues with which the judge had to deal before he came to the hearing of the stay application itself.
On 27 August 2015 the judge conducted a directions hearing which occupied the entire day. Many issues were canvassed, including the question of what preliminary matters would need to be dealt with prior to the hearing of the stay application. Senior counsel then appearing on behalf of the applicant advised that one of the matters which the applicant wished to have determined in advance of the stay application was the admissibility of evidence which was the subject of tendency and coincidence evidence notices served by the Crown. The judge indicated in the course of that hearing that at that time he was not persuaded that he should deal with those notices but that counsel for both parties should advise by memoranda the issues which they wished to have addressed in relation to those notices. Senior counsel for the applicant also indicated there was another matter which the applicant would seek to have the judge determine in advance. This was the admissibility of certain alleged admissions made by the applicant, referred to as the ‘nocturnal utterances’. In the course of the directions hearing, in response to the suggestion that this issue should be decided in advance of the trial, the judge said that he was not inclined to do that. The following interchange then occurred:
His Honour: I regard those matters as being (indistinct) matters for trial. It doesn’t preclude you from contending before me that that is on the stay application that there is a serious question or serious questions as to whether that evidentiary material could ever get into evidence on a retrial. [Senior Counsel]: Thank you. So your Honour’s indicating we could agitate the issues as relevant to all of that putting together with our other attacks on the quality of the Crown case? His Honour: Sure. [Senior Counsel]: Yes, thank you.
His Honour made detailed directions at the end of that long directions hearing, addressing the matters that needed to be determined and setting out a timetable for their determination.
Amongst the matters that needed to be determined were issues concerning confidentiality and public interest immunity which the judge then heard and 80 determined in November 2015.
Consequent upon what had occurred on 27 August, counsel for the respective parties did submit memoranda identifying issues related to the tendency and coincidence notices. His Honour heard argument on those issues on 26 November 2015. The applicant contended that the judge should rule on the admissibility of the evidence which was the subject of the tendency and coincidence notices and that he should
80 Eastman v The Queen [No 3] [2015] ACTSC 364; R v Eastman [No 4] [2015] ACTSC 366. rule it to be inadmissible. The judge delivered his ruling on 9 December 2015, being Eastman [No 5]. In that ruling the judge recorded the fact that what the applicant had contended to be the ‘primary point of present relevance’ on this issue was that, if the tendency and coincidence evidence was admissible, the applicant would face a ‘new case’ at trial and that this was a prejudicial factor militating in favour of a stay. Counsel for the respondent, in response to that contention, had conceded in the course of argument that the Court could assume for the purposes of the stay application that the tendency and coincidence evidence would be admitted. Counsel on behalf of the applicant had submitted that this concession was unsatisfactory as it would require the judge to deal with the stay application on an ‘artificial’ basis. In substance, the judge ruled that it was neither necessary nor desirable for him to determine the admissibility of the evidence the subject of the tendency and coincidence notices.
On the same day, 26 November 2015, that the judge heard the argument on the issues concerning the tendency and coincidence notices, the applicant contended the judge should also determine the admissibility of seven items of evidence, one of which was ‘the nocturnal utterances’ which had been the subject of the exchange on 27 August and six of which were new. The circumstances in which these seven matters became the subject of submissions on 26 November 2015 were set out by the judge in the ruling which he gave on the matter, also on 9 December 2015, being Eastman [No 6]. The judge set those circumstances out in some detail. In the course of the hearing before us we requested that counsel for the applicant identify for us any factual errors made by the judge in Eastman [No 5] or Eastman [No 6]. No such errors were identified. The account of the circumstances as set out by the judge in Eastman [No 6] reveals a position which was, on any view, unsatisfactory. The seven admissibility issues sought to be raised, belatedly, were said by the applicant to involve hearing one or two weeks of evidence, which would necessarily significantly dislocate the hearing and resolution of the stay application itself which had by then been fixed for hearing on 8 February 2016. The applicant’s proposal was that the stay application should be heard in February, as scheduled, but that no decision should be made until the hearing of the evidence and arguments about admissibility which, it was suggested, should be in April 2016.
In substance, in Eastman [No 6] the judge determined that it was neither necessary nor desirable to determine five of the seven issues in advance of the trial; he deferred consideration of one to the hearing of the substantive stay application itself; and he deferred consideration of one until the respondent had clarified its attitude in relation to it. The judge made it clear that the applicant was not disentitled from arguing on the stay application that at any trial some or all of that evidence would, or might, be ruled inadmissible. One of the reasons why the judge did not consider it to be necessary or desirable to rule upon admissibility in advance of the trial was the following:
First, there must be certainty as to the factual basis upon which the stay application is to be considered. It is not acceptable that it be simply a moving feast, variable according to the ingenuity of [the applicant’s] counsel and instructing solicitors. After the extended directions hearing on 27 August 2015, a hearing which took place twelve months after the date upon which the Full Court quashed [the applicant’s] conviction and ordered a re-trial, the factual basis upon which the application would proceed — so far as it concerned the strength of the [the respondent’s] case — was set to be resolved by the resolution of some or all of the issues to do with tendency and coincidence evidence, and resolution of the issues to do with legal professional privilege. In my view, that ought to have been an end 81 to the interlocutory disputation before the stay application was heard.
The applicant sought leave to appeal from the decisions in Eastman [No 5] and 82 Eastman [No 6]. Leave was granted by Walmsley AJ on 4 February 2016. For present purposes, it is important to note that a submission made on behalf of the applicant in support of leave was that it was necessary for the applicant to know the precise ambit of the entire Crown case in order for the stay application to be properly heard and determined. It was submitted that it was not satisfactory to make assumptions about the Crown case and that the ‘four corners’ of the Crown case had to be identified. It was said that this was particularly important in a circumstantial case. Walmsley AJ recorded the submission as being that this was so because ‘individual pieces of circumstantial evidence can be important in bolstering the strength of the whole case’.
The hearing of the stay application began on 8 February 2016 as scheduled, notwithstanding the granting of leave to appeal and the pending appeals. The hearing proceeded on the basis that judgment on the stay application would not be delivered until the appeals had been heard and determined.
In the course of the stay hearing senior counsel for the respondent extended the concession the Crown was prepared to make in relation to the tendency and coincidence notices. Prior to the determination of Eastman [No 5] the respondent had conceded that the Court should assume the evidence was admissible so that the applicant could argue that if a stay was not granted he would be prejudiced by having to meet a ‘new case’. Senior counsel for the applicant had submitted that that concession was inadequate because it meant that the evidence the subject of the tendency and coincidence notices would be able to be relied upon in the stay application in relation to an assessment of the strength of the Crown case. During the hearing of the stay application senior counsel for the respondent asked the judge to assume when assessing the strength of the Crown case that the tendency and 83 coincidence evidence would not be admitted. The judge did proceed on that basis. Before concluding the stay application and reserving his decision the judge observed:
[w]hen the appeal from my judgments comes on, I think the judges who hear it whoever they may be — ought to understand the way in which ultimately the matter was conducted here today on a dual assumption so that it was not simply one basis nominally favourable to [the applicant] but two. And that would need to be made clear and that’s the way 84 matters have proceeded.
The appeals in both Eastman [No 5] and Eastman [No 6] were discontinued on 10 March 2016, prior to delivery of the reserved judgment on the stay.
On behalf of the applicant it was submitted that the statements made by the judge concerning the pursuit of issues ‘regardless of merit’ was clearly a reference to the issues the subject of Eastman [No 5] and Eastman [No 6]. It was submitted that the criticism of the applicant and his legal advisers was completely unwarranted. Particular reliance was placed upon the fact that leave to appeal had been granted in relation to each of the matters. It was submitted that the appeals had been discontinued as a consequence of the additional concession which had been made
81 Eastman [No 6] [2015] ACTSC 377 [42]. 82 [2016] ACTCA 2. 83 Transcript of Proceedings (18 February 2016) 1144. 84 Transcript of Proceedings (18 February 2016) 1248. by senior counsel for the respondent in the course of argument on the stay application.
The respondent submitted that while the further concession made during the course of the stay hearing meant that the appeal in Eastman [No 5] became pointless, the only explanation for the withdrawal of the appeal in Eastman [No 6] was that it was bound to fail. It was submitted on behalf of the respondent that the judge’s relevant 85 statement was in the circumstances fair and accurate.
When counsel for the applicant sought to explain the withdrawal of the appeal in Eastman [No 6], it was initially suggested that the concession had been relevant to both matters and that that was why the judge, when commenting that the appeal judges would need to be alerted to the additional concession made, had referred to ‘my judgments’. That cannot be correct. The concession had no relevance to the seven items of evidence that were the subject of Eastman [No 6], and the judgment 86 on the stay did not apply the concessions to those items of evidence. In the end, counsel for the applicant was unable to provide an explanation for the withdrawal of the appeal in Eastman [No 6].
It is important in this context to recall that leave to appeal had been obtained after a submission was made that it was essential that the entire parameters of the Crown case be determined before the stay application could properly be dealt with. The withdrawal of the appeal in Eastman [No 6] seems starkly inconsistent with that submission.
The circumstances in which the issues which were the subject of the ruling in Eastman [No 6] arose, and their effect upon the stay application, were potentially very disruptive and very costly. This was not just because they were raised belatedly, and notwithstanding the very detailed directions hearing in August. It was also because they would have involved hearing considerable evidence, which would have resulted in very significant dislocation to the hearing and delay in the determination of the stay application. The applicant’s own proposal was that there be a second hearing in April. The withdrawal of the appeal on those matters, there being no apparent explanation for that change in course, was a circumstance which could properly attract criticism of the kind which the judge made. We do not consider that the statement relied upon gives rise to apprehended bias in those circumstances.
‘New and intendedly ingenious twist’
85 Counsel for the respondent also relied upon the numerous matters which had been referred to the Martin Inquiry and which had been found to be without substance. In our view reliance on those matters was misconceived. The relevant statement is clearly referrable to matters with which the judge had to deal prior to the stay application. 86 See the judge’s treatment of the relevant seven issues: the ‘nocturnal utterances’ at [542]– [544], [594]–[595], [801]; Reid’s evidence at [545]–[547], [596]–[597]; the alleged lies/false denials told in consciousness of guilt at [519], [590]; evidence to be adduced in reliance upon ss 65 and 67 of the Evidence Act 2011 (ACT) at [26], [551]–[589]; evidence of alleged sightings of a vehicle corresponding with the applicant’s vehicle at [517], [590]; and evidence of alleged sightings of the applicant in the vicinity of the deceased’s home at [517], [519], [590]. The issue of continuity evidence does not seem to have been addressed in the context of the strength of the Crown’s case. In all, as raised before me, the Roantree matter seems very likely to be a new and intendedly ingenious twist upon an old story, a not uncommon occurrence in the conduct by [the applicant] of his litigation over the years.
This is the second statement upon which attention particularly focused in the course of oral submissions.
The applicant submitted that this was an unwarranted and unjustified criticism of the applicant and his legal advisers which would cause the fair minded lay observer to reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the relevant issues. The respondent contended the statement was warranted in the circumstances.
Dealing first with the Dr Roantree submission itself, it is unnecessary to set out the detail concerning this issue because in the course of submissions it was accepted by counsel for the applicant that the relevant sequence of events was as follows. A number of concerns relating to Dr Roantree’s evidence were the subject of item 14 in 87 the Martin Inquiry. All of those particular concerns were rejected by Martin AJ. 88 However, Martin AJ raised new concerns. They were that, because the applicant had been unrepresented at the time Dr Roantree gave evidence, important matters which cross-examination would have revealed had not been revealed. Before the judge on the stay application a related but different submission was put. This submission was, not that the absence of representation had meant that cross-examination had not revealed relevant matters, but rather that there had been misconduct by the prosecution in not leading those relevant matters in evidence in chief.
The change in the submission put before the judge on the stay application concerning Dr Roantree can properly be described as a ‘twist’. The twist was also ‘new’.
The implicitly pejorative term ‘intendedly ingenious’ reveals irritation and frustration on the part of the judge, which is also revealed by the reference to that being a ‘not uncommon occurrence in the conduct by [the applicant] of his litigation over the years’. 89
Judges are not precluded from displaying ‘irritation or impatience’ and are at liberty 90 to express ‘measured displeasure’ at the manner in which proceedings are conducted. When issues of this kind arise they have to be assessed within their full 91 context. In Barakat v Goritsa [No 2] Basten JA said:
The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues 92 in dispute.
87 Martin Report [1338]–[1376] 88 Ibid [1781]–[1783], [1785]. 89 Singh v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, Lockhart J, 18 October 1996), cited in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125, 134; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 123; Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87, 104–5. 90 Galea v Galea (1990) 19 NSWLR 263, 283 (Meagher JA), quoted in Michael v State of Western Australia [2007] WASCA 100 [64]. 91 Barakat v Goritsas [No 2] [2012] NSWCA 36 [13]. 92 Ibid.
There can be little doubt that over the course of the protracted litigation concerning the 1995 trial there have been many matters advanced on behalf of the applicant which have been found to be without substance and which the applicant has sought to re-argue in an adapted way in subsequent hearings. Counsel for the applicant accepted that that was so.
The factual basis of what was said by the judge about the submissions concerning Dr Roantree’s evidence was also accurate.
The implicitly pejorative observation made in this context is not sufficient to give rise to apprehended bias. It is not so unreasonable as to indicate an inability to decide the issues impartially.
This statement does however form part of a group of observations whereby the judge did express negative views of the way the applicant had conducted the stay application. We turn then to the submission that the combined effect of such observations gives rise to apprehended bias.
The combined effect of the judge’s negative view
The applicant’s submission that in the Stay Reasons the judge revealed a ‘pervasive negative view’ of the manner in which the applicant had conducted the stay application is correct. Such a view does emerge from the passages in the Stay Reasons upon which the applicant relies.
Could the fair minded lay observer, having taken the trouble to inform himself or herself to the extent necessary to make a fair judgment, reasonably apprehend that this view meant that the judge might not have brought an impartial mind to the resolution of the questions the judge was required to decide?
In our view, the fair minded lay observer could not. Our reasons are as follows.
First and foremost, the fair minded lay observer would see that the judge had undertaken a most comprehensive analysis of all of the matters raised on the applicant’s behalf, including matters which had not been pressed by the applicant in 93 oral submissions, and that observer would also see that the judge had adopted assumptions in determining the relevant issues which were almost invariably favourable to the applicant. The assumptions to which we refer concern the burden 94 of proof, the appropriateness of ‘reopening’ of Martin AJ’s conclusion as to whether 95 prosecutorial non-disclosure had been advertent or inadvertent, the applicant’s characterisation of the distinctions to be drawn between different kind of prosecutorial 96 non-disclosure, and the assumption that the applicant was entitled to rely upon all of 97 the circumstances upon which he wished to rely in contending for a stay.
Secondly, the fair minded lay observer would see there was a factual basis for the 98 judge’s view. The judge set out, in Eastman [No 6], and in the Stay Reasons, the circumstances which had occurred before him which had caused him to reach the conclusions which he did. It was not suggested that any of the factual matters so set
93 Stay Reasons [48]–[50]. 94 Ibid [53]–[54]. 95 Ibid [125]. 96 Ibid [134]. 97 Ibid [59]–[60], [811]. 98 See, eg, Stay Reasons [22]–[34]. out by the judge were incorrect. In addition, it is the fact that the applicant had repeatedly sought to raise matters previously rejected. An obvious example concerns the issue of fitness to plead which, notwithstanding the fact that it had already been dealt with in a judicial inquiry before Miles CJ, was fully re-litigated again in the Martin Inquiry.
The judge on the stay application was confronted with a similar approach. For example, Martin AJ had comprehensively inquired into the issue of prosecutorial non-disclosure and the parties had agreed the judge should not depart from his conclusions without good reason, yet senior counsel for the prosecution at the 1995 99 trial was cross-examined again, at great length before the judge on the stay application. As senior counsel for the respondent submitted to us, notwithstanding the extraordinary attention given to this re-agitated matter, the applicant’s case on the issue did not advance. A similar approach was adopted concerning the evidence of the witnesses Webb and Reid, and concerning the relationship between police harassment and the nocturnal utterances. Matters which had been comprehensively dealt with in the Martin Report were re-litigated.
The Stay Reasons also reveal that there were numerous other matters advanced by the applicant on the stay application which, in the end, were either abandoned or not 100 relied upon.
Finally, the fair minded lay observer would see that the judge was not only critical of the applicant, at times he was also critical of the way the stay application was 101 conducted by the respondent.
Conclusion on apprehended bias
Taking into account the applicant’s previous reliance on similar arguments (Ground 6)
99 Counsel for the respondent informed us that the cross-examination occupied 14 hours. 100 Matters raised but eventually not relied upon were Nelipa’s complaints about Barnes (see Stay Reasons [304]–[316]), Webb’s prior conviction as a juvenile (see Stay Reasons [345]–[347]), the prosecution’s failure to support an adjournment application at the trial (see Stay Reasons [360]), the complaint as to Dr Roantree’s evidence as originally put (see Stay Reasons [381]). Further, a submission was made concerning Mrs Kaczmarowski which could not possibly have affected the result (see Stay Reasons [555]–[558]). 101 See Stay Reasons [20]; Transcript of Proceedings (27 August 2015) 3 (Crown’s proposal in relation to a matter said to be ‘entirely unsatisfactory’), 10–11 (criticism of delay by investigating authorities in relation to forensic examination of botanical specimens), 34 (reference to ‘finger pointing’ and ‘self-serving correspondence’ by both parties), 66 (‘I’m not much impressed by the position adopted by the Director. I don’t regard it as being helpful’), 80–81 (particular conduct of the prosecution suggested to be ‘a bit hot’); Transcript of Proceedings (27 November 2015) 146–7 (criticism for emailing new submissions the night before a hearing in the course of which the judge described the respondent’s conduct as ‘disgraceful, absolutely disgraceful’); Transcript of Proceedings (10 February 2016) 517 (criticism of the respondent asking ‘Dorothy Dixer questions’).
Ground 6 complains that Ashley AJ took into account an irrelevant consideration, namely that the applicant ‘had relied on similar arguments in contending that no retrial 102 should be ordered by the Full Court’.
When setting out his overall conclusions, Ashley AJ observed:
As I observed much earlier in these reasons, there is a single question for my determination: has [the applicant] satisfied the burden of showing me that this is one of those rare cases in which a permanent stay of a proceeding should be ordered? It is, I think, important to understand that the question for my determination is not a 103 question which arose either before Martin AJ or before the Full Court. 104 And later his Honour said:
My task is a second step removed from that which faced the Full Court. Treating its role as similar to, though not identical with, the role of a court of criminal appeal, the situation confronting me can be compared with the situation where, a court of criminal appeal having exercised its discretion, on a balance of considerations, to order a retrial, and the prosecuting authority having exercised its discretion to proceed with a retrial, the accused person then applies for a permanent stay of the proceeding. As a matter of logic, it seems to me, the position of the accused person, on such an application, is more difficult than the task faced by that person at the earlier stage. That is so bearing in mind the heavy burden borne by an applicant for a permanent stay of a proceeding — ‘heavy’ not in the sense of the standard of proof required, but heavy because of the requirement that the case be 105 shown to be an extreme one. Perhaps particularly the task will be more difficult where the accused person, when seeking a stay, relies essentially upon the same circumstances as were relied upon in the court of criminal appeal as calling for entry of a verdict of not 106 guilty.
The applicant’s submissions
the point that we make overall in relation to this is that this goes to our point that to take into account the approach of a Court of Appeal was completely irrelevant. To take into account the fact that similar arguments have been run before a Court of Appeal was irrelevant and productive of the error that we complain of under this ground. So whilst much of what his Honour might have observed may be correct as a matter of chronological history relating to this case, in the end it was productive of error … 107
102 Eastman v DPP [No 2] (2014) 9 ACTLR 178. 103 Stay Reasons [763]–[764] (emphasis added) (citation omitted). 104 Ibid [789] (emphasis added) (citations in original). 105 See Dupas (2010) 241 CLR 237, 250 [35]. 106 Or entry of acquittal, depending upon the language of the particular statute. 107 (2014) 292 FLR 57, 78 [107].
first, the approach by the Full Court to its task as compared to that facing Ashley AJ;
secondly, the heavier onus on an accused person applying for a stay after that person had failed to resist an order for a retrial;
thirdly, the comparison of considerations advanced before the Full Court to those advanced before Ashley AJ with the conclusion that they were similar; and
fourthly, the conclusion that to allow a permanent stay would result, effectively, in an acquittal.
The respondent’s submissions
The respondent’s oral submissions concerning ground 6 were economical. Senior counsel submitted that Ashley AJ had been entitled to have regard to what the Full Court had said, and observed that it was important that the applicant had advanced no submission to his Honour that the Full Court’s ‘position, or determinations on any or all matters, were irrelevant’. Counsel contended that Ashley AJ ‘made clear what 109 the decisive matters were’. But even if his Honour had paid no regard to the Full Court's judgment, or to the Martin Report, it is ‘abundantly clear when one reads the entirety of the judgment’ that ‘the result would have been the same’.
In written submissions, the respondent contended that the arguments in support of ground 6 misapprehend the approach of, and conclusions drawn by, Ashley AJ. The respondent argued that Ashley AJ had correctly identified that the Full Court could have made an order which meant that no retrial would occur, but decided against that course. Failure to convince the appellate court not to order a retrial must mean that it would be more difficult to persuade a judge at first instance to order a permanent stay than it would in a typical situation where a first instance court was the first court called upon to determine the question of whether or not a retrial should be permitted. The respondent contended that, when Ashley AJ observed that the applicant needed 110 to show that the case was ‘an extreme one’, his Honour was not suggesting that the application and the circumstances of its history — including the findings of the Full Court — meant that the applicant bore a heavier onus. Rather, his Honour was 111 simply harking back to what had been said in Dupas. Ashley AJ understood that
108 See [35]. 109 At Stay Reasons [812]. 110 Ibid [789]. 111 Dupas (2010) 241 CLR 237, 249–51 [30]–[38]. matters additional to those put to the Full Court were relied upon to found the 112 application for a permanent stay.
First, both parties had relied upon findings made by the Martin Inquiry and by the Full Court. Ashley AJ understood the manner in which regard would be had to the 113 Martin Inquiry findings, and the Full Court’s approach was relevant in the 114 manner that his Honour explained. The approach taken by Ashley AJ had not been ‘polluted’, and his Honour's conclusions ‘have been reasoned and explained’.
Secondly, the applicant failed to satisfy Ashley AJ ‘of sufficient matters, and to the appropriate standard, that a stay ought be granted’. His Honour applied the correct onus, and, in any case, his findings would not have led to a stay on the standard which the applicant claims was not applied.
Thirdly, Ashley AJ made it clear that he was not persuaded that a permanent stay should be granted by the additional matters that had been argued before him.
Fourthly, as the applicant had recognised, the conclusion that a stay would be tantamount to an acquittal was — ‘in a practical sense’ — correct, and was thus linked to the ‘public interest in the resolution of the matter on its merits’.
Analysis
In our opinion, ground 6 cannot be upheld.
Early in his reasons, Ashley AJ observed that the applicant relied on six circumstances in combination as justifying a stay: prosecutorial misconduct; a ‘not strong’ circumstantial Crown case; delay; the applicant’s personal circumstances; 115 publicity; and the expense of a new trial. Despite some of the circumstances being subdivided into ‘numerous sub-categories’ which were ‘exhaustively explored’, however, Ashley AJ said that he ‘never lost sight’ of the single question requiring his determination: had the applicant satisfied him, in the totality of the circumstances, 116 that he should have the relief which he sought? And, as we earlier observed, when introducing his conclusions overall, Ashley AJ said that the ‘single question’ for determination was whether the applicant had satisfied the burden of showing that the present is one of those rare cases in which a permanent stay of a proceeding should 117 be ordered.
Ashley AJ said that he had acted upon the ‘sensible’ agreed position taken by the parties with respect to the status of the Martin Report. Thus, neither party contended that the findings made by Martin AJ bound him — ‘not even findings endorsed by the Full Court, which exercised a judicial function’ — but agreed that he should not depart
112 Stay Reasons [790] et seq. 113 Ibid [42]. 114 Ibid [788]. 115 Ibid [45]. Ashley AJ further observed that the applicant also relied upon what he contended was a ‘new’ Crown case, that contention resting on an expressed intent by the Crown to rely upon tendency and coincidence reasoning at the retrial. 116 Ibid [47]. 117 Ibid [763]. from any finding made by Martin AJ without good reason. Ashley AJ was at pains to make clear, however, that the question for his determination was not one which 119 arose before Martin AJ or the Full Court.
It will be remembered that Martin AJ had recommended that there be no retrial. He 120 said that there were ‘numerous reasons’ why a retrial was not feasible’. Contrary to the recommendation made by Martin AJ, however, the Full Court ordered that the applicant be retried. 121
Ashley AJ set out at length the reasoning of the Full Court. It is unnecessary to repeat what his Honour said, save to observe that, when deciding what order it could make under s 430(2) of the Crimes Act 1900 (ACT), it is clear that the Full Court had no power to order an acquittal, its options being, first, to confirm the conviction; secondly, to confirm the conviction and make a recommendation for remission of penalty or pardon; thirdly, to quash the conviction; or, fourthly, to quash the conviction 122 and order a new trial.
As we have mentioned, having set out the reasoning of the Full Court, Ashley AJ said that his task was ‘a second step removed from that which faced the Full Court’, the situation facing him being comparable ‘with the situation where, a court of criminal appeal having exercised its discretion, on a balance of considerations, to order a 123 retrial, the accused person then applies for a permanent stay of the proceeding’. His Honour then set out his rejection of eleven ‘particular factual circumstances’ that the applicant had relied upon in support of his stay application. In summary, his Honour concluded that:
first, the prosecution legal team’s non-disclosures were ‘scarcely blameworthy’, and the extent of any prejudice ‘was at least estimated at its very highest’ by 124 Martin AJ;
secondly, there was no failure with respect to the more limited obligation of 125 disclosure after trial and appeal;
thirdly, there was no deliberate unfairness to the applicant from the way the 126 prosecution conducted the case at trial;
fourthly, it had not been established that there was any connection between the harassment to which the applicant had been subjected and the ‘nocturnal utterances’ upon which [the respondent] relies as constituting admissions of 127 guilt;
118 Ibid [42]. 119 Ibid [764]. 120 Ibid [765]. 121 Ibid [767]–[787]. 122 Ibid [768]. By way of contrast, on an appeal against conviction, under s 37O(1)(d) of the Supreme Court Act 1933 (ACT) the Court has power ‘to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered’. 123 Ibid [789]. 124 Ibid [798]. 125 Ibid [799]. 126 Ibid [800]. 127 Ibid [801]. fifthly, [the respondent’s] case ‘remained a strong circumstantial one’;
sixthly, the evidence potentially available in support of the alternative hypothesis 129 should not be valued any more strongly than it was valued by Martin AJ; 130 seventhly, there was no ‘significant prejudice’ flowing from delay;
eighthly, the entirety of the applicant’s personal circumstances do not stand ‘much 131 in favour of the success of the application’;
ninthly, notwithstanding that ‘the balance of reporting over a period of many years has been adverse’ to the applicant, ‘the situation with respect to publicity has not been in any way comparable with the relentlessly unfavourable reporting which 132 occurred in cases such as Dupas’;
tenthly, although a retrial will be ‘lengthy’, and involve ‘considerable preparation’ and ‘much expense’, in all the circumstances the likely expense of a new trial 133 does not run in favour of the grant of a stay; and
finally, the applicant will not face a ‘new case’ of the kind that might call for entry 134 of an acquittal by a court of criminal appeal.
In the end, having regard to all the matters urged for the parties, I am not persuaded that it would be an abuse of process, or would work oppression or unfairness upon [the applicant], that there should be a retrial. The decisive matters seem to me to be these: Winchester's murder was a terrible crime. It involved the assassination of a senior police officer, the crime evidently being premeditated. This was not the case of a policeman being killed by an offender in some heated confrontation, bad enough as that would be. There is, in my judgment, a strong circumstantial case against [the applicant]. If a permanent stay was granted, in a practical sense it would be equivalent to an acquittal, for [the applicant] would never face a retrial. His guilt or not, a matter about which there a real 135 public interest, would remain undetermined, just as it would have been had the Full Court quashed his conviction and not made an order for a retrial. It might be, if [the applicant] was tried and convicted, that a life sentence would not be imposed — at least, it cannot be said with complete certainty that such a sentence would be imposed. But even if, having been convicted, [the applicant] spent not one further day in prison, it seems to me that it would matter very little. For, critically, the verdict would show that, on consideration of all the evidence, the jury had been satisfied of [the applicant's] guilt of a grave crime to the criminal standard. If, on the other hand, he was acquitted, it would show that the jury had entertained a reasonable doubt as to his guilt. Either way, the verdict of the body properly entrusted with the determination of the matter would finally have quelled the 136 controversy between the parties.
128 Ibid [802]. 129 Ibid [803]. 130 Ibid [805]. 131 Ibid [806]. 132 Ibid [807]. 133 Ibid [808]. 134 Ibid [809]. 135 Not to be confused with the interest of the public. 136 Stay Reasons [812] (footnote in original). those pertinent to the grant (or refusal) of a permanent stay (albeit, as Ashley AJ recognised, the task of the trial judge differs in some respects from that of a court of criminal appeal).
When a court of criminal appeal is called upon to exercise the discretion whether to order a new trial following the quashing of a conviction, the interests of the community 137 as well as the interests of the accused need to be brought into balance. The circumstances in which the discretion will be exercised so as not to order a new trial will vary, so that there are no fixed criteria. It has been said, however, that the length and complexity of any retrial, together with inadequacies in the way in which the case 138 has been presented, may militate against ordering a new trial. So too, the advanced age and ill-health of a successful applicant of previously unblemished reputation, coupled with the fact that much of the sentence had been served, might 139 militate against an order for retrial. Moreover, several trials and long periods in 140 custody might also dictate there be no retrial. The public interest in securing a fair trial of an alleged offender must be weighed against the public inconvenience and expense, and against the possible oppression upon an individual who is placed in jeopardy twice for the same offence; who has already spent some time in prison; and 141 who has already been through a trial and an appeal. In approaching the matter, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, since, if it was not, it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case; then, secondly, the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering that the public interest in the proper administration of justice 142 must be considered as well as the interests of the individual accused. 143
In Dyers v The Queen, Kirby J set out a comprehensive list of the various relevant considerations potentially militating against ordering a retrial. He said:
There are certain instances where this court, in the exercise of its judicial power, has refrained from ordering a retrial. The cases include:
where the evidence adduced at the first trial did not, and could not, as a matter of law, prove the offence charged against the appellant;
where the only basis upon which the prosecution could succeed at a new trial would be by propounding a different case from that presented at the first trial, permitting which would constitute a serious injustice to the accused. This court has said ‘it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case’;
where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial;
where it is shown that the appellant, who succeeds in the appeal, has served the custodial part of his sentence and a fortiori where an appeal has been brought by the
137 DPP (Nauru) v Fowler (1984) 154 CLR 627, 630; R v Anderson (1991) 53 A Crim R 421, 453. 138 R v Wilson [1995] 1 VR 163. 139 R v Bartlett [1996] 2 VR 687. 140 R v Clune [No 2] [1996] 1 VR 1. 141 Rabey v The Queen [1980] WAR 84, 95–6. 142 DPP (Nauru) v Fowler (1984) 154 CLR 627, 630. See also R v Thomas [No 3] (2006) 14 VR 512; R v Tang [2007] VSCA 144. 143 (2002) 210 CLR 285. prosecution against that sentence but has been rejected. Even more powerful will be the case where the successful appellant can show that he or she has served the entire sentence so that, if a second trial were had, it could not result in the practical imposition of any additional, or other, punishment upon the appellant. Sometimes this latter consideration will be subject to a possible countervailing need to order a new trial to vindicate reasons in addition to the punishment of the appellant. Thus, where the successful appellant is a legal practitioner, or some other person for whom a conviction is critical for legal reasons, an order for a retrial may be made, so as to allow the prosecuting authority to decide whether larger considerations of the public interest require a fresh determination of the guilt of the appellant of the charge that miscarried for legal error at the first trial. Other considerations that may be relevant include:
whether there has already been more than one earlier trial;
whether, having regard to the venue, publicity and errors in the first trial it would be impossible to secure a fair retrial of the accused in any venue actually available;
whether the intervening death of witnesses could make an order for a retrial manifestly unjust or oppressive to the appellant;
whether a retrial would, in the circumstances, impose unacceptable trauma and distress on witnesses, unwarranted by the alleged offence and the prospects of conviction;
whether a supervening change of the criminal law, abolishing the offence with which the appellant was charged, might make a retrial seriously unjust or oppressive;
whether the age, mental or physical condition of the appellant are such that they would make a retrial clearly unjust in the circumstances; and 144 whether the prosecution indicates that it does not seek an order for a retrial.
144 Ibid 314–15 [82]–[83] (footnotes omitted). 145 Eastman v DPP [No 2] (2014) 9 ACTLR 178, 255–7 [263]–[271]. 146 Ibid 257 [272]. 147 Ibid 257 [273]. 148 Ibid 257–8 [274]. 149 Ibid 258 [275]. 150 Ibid 258 [276]. 151 Ibid 258 [278]. 152 Ibid 264 [298]. could not order an acquittal, if the Court did not order a retrial, the applicant’s ‘guilt or 154 otherwise will never be determined’. Importantly, however, the Court recognised that ‘an order for a retrial does not necessarily entail that there will, in fact, be a 155 retrial’ — since proper analysis of the confidential material may prompt the Director 156 not to pursue such a course — and, in any event, a permanent stay could be sought:
If as a result of the order for a new trial, the Director does decide to present Mr Eastman for trial again, it would be open to Mr Eastman to seek a permanent stay if he was, in all the circumstances, able to demonstrate that he could not be fairly tried, or that the further trial would be seriously and unfairly burdensome, or there was an abuse of process or the use of the court’s procedures would bring the administration of justice into disrepute or that the maintenance of immunity over the new confidential material so requires under s 130(5)(f) of 157 the Evidence Act.
As we have said earlier, this is a wholly exceptional case. Weighing all the factors and considerations to which we have referred above, we have concluded that the interests of justice require that we order a retrial. The gravity of the offence, the life sentence imposed and the strength of the remaining circumstantial case persuade us that, despite the time that has elapsed since the offence and the time that Mr Eastman has already spent in custody, this is an appropriate case to order a new trial. The community has a vital interest in ensuring that a person against whom a strong circumstantial case of murder of a very senior police officer exists, does not escape conviction if, on a trial conducted in accordance with law, a jury is satisfied beyond reasonable doubt of his or her guilt. And this is so even if the person has already served any term of imprisonment that might be 158 imposed on him or her following conviction on the retrial: Spies at [103]–[104]. Whether the Director decides to present Mr Eastman for trial again will be a matter for the exercise of his prosecutorial discretion in accordance with his prosecution policy. If that occurs it will be open to Mr Eastman to make any application for a stay to the trial judge that the then 159 factual position may warrant.
In our opinion, Ashley AJ was correct to compare the situation confronting him ‘with the situation where, a court of criminal appeal having exercised its discretion, on a balance of considerations, to order a retrial, the accused person then applies for a permanent stay of the proceeding’; and to observe that, as a matter of logic, ‘the position of the accused person, on such an application, is more difficult than the task faced by that person at the earlier stage’, where the accused person, when seeking a stay, ‘relies essentially upon the same circumstances as were relied upon in the court of criminal appeal as calling for entry of a verdict of not guilty’. By the time Ashley AJ was called upon to consider the application for a permanent stay, the Full Court had considered — and rejected — a number of matters militating against a retrial. Many of those matters were also relevant to the question of whether there should be a permanent stay; but, as the Full Court recognised, there were aspects that it was incapable of properly assessing which might militate in favour of a permanent stay.
Ashley AJ made it clear that he gave independent and discrete consideration to the various factors relied upon by the applicant as justifying a permanent stay. He did not, so it seems to us, improperly fetter his discretion by reference to the Full Court’s
153 Ibid 264 [299]. 154 Ibid 264–5 [300]. 155 Ibid 265 [301]. 156 Ibid 265–6 [302]–[305]. 157 Ibid 266 [306] (emphasis added) (citations omitted). 158 Spies v The Queen (2000) 201 CLR 603, 638. 159 Eastman v DPP [No 2] (2014) 9 ACTLR 178, 266–7 [308] (emphasis added). findings. As his Honour recognised, the grant of a permanent stay is a remedy which will only be granted in a rare case. Given the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the applicant needed to establish that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process, or would otherwise involve unacceptable injustice or unfairness to the applicant. As Ashley AJ had observed early in his reasons, the central question was whether there is a fundamental defect of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences. Importantly, his Honour was cognisant of the ‘social imperative’ dictating those who are charged with criminal offences being brought to trial — in circumstances where a permanent stay is tantamount to a continuing immunity from prosecution — and that, because of this public interest, fairness to the accused cannot be the only consideration bearing on a court's decision as to whether a trial should proceed.
Ashley AJ failed to place any or sufficient weight on the matters which tend to compromise the fair presentation and consideration of the applicant’s defence at any retrial, and failed to consider the combined force of these matters (Ground 2)
It can be seen at the outset that this ground does not assert that Ashley AJ failed to have regard to relevant considerations. Rather it is directed to his evaluation of those 160 considerations. For reasons we have explained, such a ground can only succeed if it was not open to his Honour to arrive at the conclusion which he did. The position of an appellate court considering an application for leave to appeal against an interlocutory order giving effect to a discretionary judgment is not that of the trial judge. Nevertheless, the application for leave was argued in large part as if this Court were in the position of the trial judge. It will ultimately be necessary to come back to this issue in resolving this ground of appeal.
Ground 2 is advanced on the basis of the cumulative effect of three considerations which are said to prejudice the fairness of a retrial. It is submitted first, that the impact of public interest immunity rulings will compromise the presentation of the defence case; secondly, that there were inadequacies in the original police investigation and consequent prejudice due to the passage of time; and thirdly, that a fair trial will be materially prejudiced by the media publicity which has occurred prior to the proposed retrial.
Issues of confidentiality
The applicant places particular emphasis upon the limitations confronting the presentation of his case as a result of public interest immunity (‘PII’) rulings which have been made in this case protecting the identity of different sources of information supplied to investigating police concerning the possible involvement of an organised crime group in the killing of Mr Winchester.
In argument before Ashley AJ, the defence characterised this possibility as the ‘alternative hypothesis’. It may be observed that it is not so much an alternative
160 See above [44]–[57]. hypothesis as to what may or may not be inferred from the Crown’s circumstantial case as a competing hypothesis which is put forward as having independent evidentiary support. [redacted]
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… as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, ‘the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike’. Secondly, ‘unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice’. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ 162 processes in a way that is inconsistent with those fundamental requirements.
The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case 163 only, the balance falls upon the side of disclosure.
In dealing with the identity of informers judges have often used words which might be thought to suggest that identity may be disclosed only where it is shown that disclosure will enable the innocence of the accused to be demonstrated. So Lord Esher MR spoke of
161 Cf ibid 95–6 (Mason J). 162 (2011) 245 CLR 456, 478 [57] (citations omitted). 163 [1978] AC 171, 218 (citation omitted). 164 Cain v Glass [No 2] (1985) 3 NSWLR 230, 233–4 (Kirby P) 247 (McHugh JA). disclosure’s being ‘necessary or right in order to shew the prisoner's innocence’. By way 166 of further examples see what was said by Gibbs ACJ in Sankey v Whitlam and the authorities to which his Honour there referred, including R v Lewes Justices; Ex parte 167 Home Secretary. But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in 168 Cerrah v The Queen, Vincent J, speaking in effect for the court, said: It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice. I doubt whether this test is significantly different to that mentioned by Wilson and 169 Dawson JJ and Brennan J in Alister v The Queen. The test laid down by Vincent J is capable of being applied not only on a trial but also in committal proceedings. I would respectfully suggest that the words ‘is at the very least capable of being, if not likely to be, of some real assistance to him’ should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him. I should add 170 that I respectfully doubt whether McHugh JA (as he then was) in Cain v Glass [No 2] intended to lay down any substantially different test to that which I have attempted to 171 formulate.
This formulation was adopted by the New South Wales Court of Criminal Appeal in 172 R v Meissner and by the South Australian Court of Criminal Appeal in R v 173 Mason.
Brooking J went on to reconcile his formulation with the underlying notion of balancing 174 competing public interests as follows:
The fact that there is good reason to think that disclosure of the informer’s identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed. It may be suggested that the notion of a balancing of relevant factors pointing in one direction against relevant factors pointing in the other is not consistent with the proposition that identity must be disclosed if there is good reason to think that disclosure may be of substantial assistance to the defendant, and that the question must always be the general
165 Marks v Beyfus (1890) 25 QBD 494, 498. . 166 (1978) 142 CLR 1, 42 (‘necessary to support the defence of an accused person’). 167 [1973] AC 388, 407–8 (Lord Simon of Glaisdale) (‘required to establish innocence’); Lord Simon's observation was also cited by Stephen J in Sankey v Whitlam at 62. 168 Unreported, Victorian Court of Appeal, Young CJ, Vincent and Crockett JJ, 6 October 1988. 169 (1984) 154 CLR 404, 438, 456 (a likelihood of the obtaining of material substantially useful to the accused) 170 (1985) 3 NSWLR 230. 171 [1995] 1 VR 84, 89–90 (citations in original). 172 (1994) 76 A Crim R 81, 87–8. 173 (2000) 77 SASR 105, 115–6 [44]–[45] (Bleby J). See also, Eastman v The Queen (1997) 76 FCR 9; Haydon v Magistrates’ Court (2001) 87 SASR 448; R v Bandulla [2001] VSCA 202; Gee v Magistrates’ Court (2009) 89 SASR 534; Derbas v The Queen (2012) 221 A Crim R 13. Cf R v Lodhi (2006) 65 NSWLR 573. 174 Jarvie v Magistrates’ Court of Victoria (1995) 1 VR 84, 90 (citation in original). one whether the public interest will be better served by disclosure or non-disclosure. On this approach it might be said that the degree of possible prejudice from non-disclosure to which a given defendant may be required to submit may depend on the strength of the considerations favouring non-disclosure. But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution. To say that in such a case no balance is called for is to say that, whatever the strength of the case in favour of non-disclosure, it cannot prevail. But a balancing has still been carried out, and effect has been given to an overriding principle that the ‘right’ to a fair trial must not be substantially 175 impaired.
Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be presented as evidence. (2) The court may give a direction under subsection (1) on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give the direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for subsection (1) to relate to matters of state, the information or document is taken for that subsection to relate to matters of state if presenting it as evidence would— … (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or … (5) Without limiting the matters the court may take into account for subsection (1), it must take into account the following matters: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding — whether the party seeking to present evidence of the information or document is a defendant or the prosecutor; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of presenting evidence of the information or document, and the means available to limit its publication; (e) whether the substance of the information or document has already been published; (f) if the proceeding is a criminal proceeding and the party seeking to present evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory.
175 Alister v The Queen (1984) 154 CLR 404, 456 (Brennan J); R v Governor of Brixton Prison; Ex parte Osman [1991] 1 WLR 281, 288 (Mann LJ); R v Keane [1994] 1 WLR 746, 751–2.
Section 130(4)(e) specifically includes the identity of confidential sources of information, such as police informers, within the category of matters of State referred to in s 130(1). The test postulated by s 130(1) is the sole test by which issues of PII 176 now fall to be decided.
Some further observations can be made about the test. First, as Sully J observed in 177 Kaddour, the section requires a trial judge to identify with precision and then balance fairly and sensibly the two competing interests to which the section refers.
Secondly, the understanding of the relative importance of the public interest in maintaining confidentiality with respect to the identity of police informers will be informed by the common law authorities with respect to that issue:
Section 130 of the Evidence (Consequential and Other Provisions) Act 1995 … appears now to require a weighing of competing interests. Even so, at the very least, the Attorney General is entitled to rely upon the high importance which this aspect of the law of public interest immunity attaches to the protection of the identities of police informers, and the 178 generally accepted reason for that importance.
Thirdly, the court may give a direction under s 130 either on its own initiative or on the application of any other person and in deciding whether to give a direction the court may inform itself in any way it thinks fit. 179
The proper application of s 130 was considered in Kaddour. In that case, the respondents were charged with soliciting the murder of AB. In the course of the investigation of the murder, police informers engaged in covertly recorded conversations with a suspect and an associate of the suspect. The Crown case ultimately was that another man killed AB after being solicited to do so by the accused. The defence was that someone other than the accused was responsible for soliciting the murder and that this alternative hypothesis had not been fully and properly investigated. Sully J summarised the defence arguments:
(1) Someone other than the respondents was responsible for the murder. There has been a biased police investigation. The police have filtered information that has come before the Court and are denying the respondents the opportunity of identifying and of developing those alternative hypotheses. There were two relevant rival groups in the tow-truck industry and the police investigation has favoured one over the other. The evidence before the Court is the result of police endeavouring to confirm previously held suspicions, rather than the result of an unprejudiced police investigation. (2) The technique employed by the investigating police of using people to engage others in conversation with the aim of obtaining intelligence and evidence might have caused the targets of the operation to colour their evidence, because of feeling intimidated or for some other reason. This goes to the credit of the witnesses who were targets of the technique. (3) It is material to know if a witness was an informer so that the credit of that witness can be challenged by asking whether or not he was paid or given some other improper inducement. (4) An agent used by the police might have started false rumours which, so the argument 180 would presumably run, might have in some way found their way into the evidence.
176 A-G (NSW) v Kaddour [2001] NSWCCA 456 [14] (‘Kaddour’) (Sully J, with whom Spigelman CJ and Adams J agreed). 177 Ibid [15]. 178 R v Smith (1996) 86 A Crim R 308, 312 (Gleeson CJ, Clarke and Sheller JJA) (‘Smith’). 179 [2001] NSWCCA 456. 180 Ibid [17].
What the trial Judge was required to do was, in my opinion, to strike a careful and sensible balance between, on the one hand, the precise objections taken in the affidavits and their respective supporting Confidential Statements; and, on the other hand, a congeries of fairly imprecise and speculative propositions of the kind summarised in the paragraphs numbered [1] through [4] above. In striking that balance, the learned trial Judge was required to consider, so far as was relevant, the particular matters to which reference was made in sub-section (5) of section 130. His Honour was required to consider as well, — for the requirements of sub-section (5) are inclusive and not exclusive, — the propositions summarised in the decision of this Court, (Gleeson CJ, Clarke and Sheller JJA), in Arthur 182 Stanley Smith.
The question for his Honour did not involve some free-wheeling inquiry into what his Honour described at one point in his reasons as ‘a real prospect of forensic fruitfulness’. What was required of his Honour was a precise and careful striking of a precise and 183 prescribed statutory balance.
We turn then to the balancing exercise which the judge was required to undertake in the present case.
The applicant here submits first that there is authority which establishes that there may be cases in which the preservation of anonymity of a witness so materially and unfairly inhibits exploration of issues going to the credit of the witness as to prevent a fair trial. 184
In R v Davis, Lord Bingham and Lord Carswell each referred to this passage of the majority opinion of the Supreme Court of the United States in Smith v Illinois:
In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of 185 cross-examination itself.
We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include
181 Ibid [19] (citation in original). 182 (1996) 86 A Crim R 308: see in particular at 311, 312. 183 Kaddour [2001] NSWCCA 456 [21]. See also the passage from Smith (1996) 86 A Crim R 308 quoted above at [209] of this judgment. 184 [2008] 1 AC 1128, 1139 [7] (Lord Bingham), 1154 [51] (Lord Carswell). 185 390 US 129, 141 (1968) (citations omitted). the right for the defence to ascertain the true identity of an accuser where questions of 186 credibility are in issue.
The wide direction regarding secrecy sought by the state in the present application has far more drastic consequences for the accused than an in camera hearing with a restriction on the publication to the public of a witness’ identity. The consequences to the accused of such a wide direction are, inter alia, the following: (a) No investigation could be conducted by the accused’s legal representatives into the witness’ background to ascertain whether he has a general reputation for untruthfulness, whether he has made previous inconsistent statements nor to investigate other matters which might be relevant to his credibility in general. (b) It would make it more difficult to make inquiries to establish that the witness was not at places on the occasions mentioned by him. (c) It would further heighten the 187 witness’ sense of impregnability and increase the temptation to falsify or exaggerate.
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186 [1986] 2 NZLR 129, 148–9. 187 [1986] (4) SA 187, 189 (Local Division).
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Inadequacies in the police investigation of the alternative hypothesis
[redacted] [redacted] [redacted] [redacted] [redacted] [redacted] [redacted] 188 These deficiencies in the police investigation cannot now be remedied.
188 Citations omitted.
It may be accepted that, by reason of the passage of time, the applicant has lost the chance that further investigation may have incriminated [redacted]. Nevertheless, as 189 Ashley AJ recorded, the alternative hypothesis was the subject of much investigation after Mr Winchester’s death. The sequence and detail of the 190 investigation was set out by Martin AJ in his analysis of the alternative hypothesis.
The significance of the inadequacies complained of with hindsight is a matter which will be capable of evaluation by a properly instructed jury having regard to the evidence as a whole and keeping in mind the onus and burden of proof which the Crown bears. It will also be open to the trial judge to give a forensic disadvantage direction appropriate to the facts of the case. 191 192
In R v Smith [No 1], Buddin J carefully analysed a series of authorities relating to cases of this kind. These reveal a consistent approach to the significance of lost opportunities to pursue further investigation of aspects of a circumstantial case. They 193 are supplemented by the further Victorian authorities to which Ashley AJ referred. Amongst the cases to which Buddin J referred, some deserve specific mention. In 194 R v Helmling, the prosecution lost a blood sample taken from the body of a deceased driver with whose motor vehicle the vehicle of the accused had collided. Hunt CJ at CL (with whom the other members of the Court agreed) said:
What the applicant has lost therefore is the chance that he may have been able to do better; he has not lost the certainty that he would have done better. He had been permanently deprived of an opportunity simply to explore an avenue of inquiry which might have led to his acquittal. That may in some cases be suffıcient, but they would in my view be rare. They would not usually produce the extreme situation which the authorities require 195 … 196
189 Stay Reasons [601]. 190 Martin Report [1281]–[1337]. 191 (2011) 218 A Crim R 52. 192 See footnote [33] above. 193 Ibid. 194 Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, 11 November 1993. 195 Ibid 7–8. 196 [1999] NSWCCA 340. 197 Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Carruthers and Hunter JJ, 12 August 1994. 198 Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, 11 June 1992. … Although I have recognised that prejudice to the applicant may have occurred in consequence of the loss of at least some material, it does not follow that any trial will be unfair. This is not a perfect world. Sometimes crimes are not discovered until long after 200 they have occurred; and as the passages quoted from R v Tolmie and R v McCarthy make clear, not infrequently some items of evidence or witnesses will not be available. Some assessment of the significance of not only the unavailable, but also of the available, evidence is required. … The circumstances that a stay will only be granted where there exists a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’; and that the remedy is discretionary, mean that account must also be taken of the powers available to a trial judge to eliminate or reduce the risk of unfairness … The use of these powers is likely to ensure that the Crown gains no unfair advantage from evidence relating to the missing firearm, clothing etc. Of course, the powers are unlikely to cure the absence of any evidence which would tend to exculpate the applicant. I have largely dealt with that latter topic; but it must not be forgotten that the lateness of complaint in many sexual assault matters is calculated to preclude the possibility of any alibi evidence being available to an accused and yet the approach of the Courts has not been to stay all 201 such actions. 202
It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial. There is no doubt that the police investigation was unsatisfactory in some respects. However these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge. The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to 203 an acquittal or a retrial. But that will all depend on the facts of the particular case.
The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay. They seek to distinguish their case on the basis that the loss here is of the
199 Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Mahoney JA and Abadee J, 23 February 1993. 200 Unreported, New South Wales Court of Criminal Appeal, Tobias JA, Hulme and Adams JJ, 12 August 1994. 201 R v Hatfield [1999] NSWCCA 340 [17], [38], [42]–[43] (citations in original). 202 (1998) 72 ALJR 1316. 203 Ibid 1319–20 [16]–[18] (emphasis added). independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event. The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material 204 which could relevantly bear upon the matter does not make the trial unfair.
Pre-trial publicity
655 It was submitted for [the applicant] in writing that: (1) [The applicant] is ‘truly notorious in the ACT’. For many years, article after article has been written about him, suggesting that he was guilty of the murder of the deceased, that he is dangerous, violent, mentally unstable, and that he ought not be released from custody. (2) The police have held forth that he was guilty. (3) Martin AJ stated that he was ‘fairly certain’ that [the applicant] was guilty, and the prejudicial effect of this statement could not be gainsaid. (4) Despite what the High Court said in Dupas v The Queen, in the ‘unique circumstances of this case’ a trial judge could do nothing ‘to protect [the applicant] against the overwhelming prejudice that he faces’. 656 In support of the submission noted at (1) in the preceding paragraph, counsel for [the applicant] tendered and relied upon the affidavit of Michael Toole, solicitor, affirmed 8 February 2016 and the many exhibits thereto. Counsel highlighted — (1) early materials referring to [the applicant] as a murder suspect or killer; (2) material suggesting that [the applicant] is a dangerous person; (3) material suggesting that [the applicant] had engaged in earlier aggressive conduct; (4) ‘enormous publicity’ given to the comment of Martin AJ that he was ‘fairly certain’ of [the applicant’s] guilt; (5) demographics of the population of the ACT, the point of which was to show that there would be a limited pool of potential jurors if there was to be a retrial; and (6) material as to the circulation of the Canberra Times. 657 Further as to the submission noted at … (3) above, counsel orally submitted that the particular comment by Martin AJ was unnecessary. Counsel contended that whilst it might be said that his Honour was ‘not disentitled’ to say what he did, certainly it was ‘not mandated’. 658 With respect to the [the respondent’s] submission that a body of material has been published over the years which has ‘gone the other way’, counsel submitted that the ‘overwhelming majority’ of the reporting had been about [the applicant’s] conviction for murder. Such reporting had gone on for a very long time. There could not be any doubt that every potential juror would have heard something about the matter. There was a risk of unconscious prejudice, which would be extremely difficult to eradicate in the trial context. 659 In substance, counsel accepted my observation that ‘I think if you’ve got any traction here at all, it’s only somewhere in the mix’. He submitted that Dupas v The Queen did
204 (2009) 83 ALJR 717, 722 [30]–[31] (emphasis added) (citations omitted). not preclude the possibility that adverse pre-trial publicity remains a relevant factor and, in conjunction with other factors, could lead to grant of a stay. 660 Finally, in reply, counsel noted that in the ACT, an accused does not have the ability to elect to have trial by judge alone. So, he submitted, [the applicant] could not avoid the prejudice of retrial by a judge and jury . 661 It was submitted in writing for [the respondent] that: (1) Whilst [the applicant] has been the subject of a significant amount of publicity since Winchester’s murder, much of it has been positive — for example, reports that he is not guilty and that there is an alternative hypothesis. (2) The Full Court accepted that there was substantial publicity of Martin AJ’s conclusion that the conviction should be quashed and assumed that his Honour’s observation as to the strength of the case against [the applicant] received a degree of publicity. But it rejected [the applicant’s] submission that because of pre-trial publicity, a retrial would be oppressive. (3) For a trial to be stayed, the publicity must be such that it cannot be cured by directions and would deprive the accused of a fair trial. (4) In Dupas v The Queen, the accused had been the subject of extensive pre-trial publicity. The situation which he faced was worse than that complained of by [the applicant]. The High Court had unanimously refused to grant a permanent stay, concluding that any potential unfairness could be relieved by appropriate directions to the jury. (5) The present case was plainly distinguishable from what occurred in Tuckiar. In that case, Tuckiar’s own counsel advised the court that his client had confessed to him, a fact later published in the local papers from where the jury pool was drawn. The High Court noted in Dupas v The Queen that this created an unfairness which could not be relieved, there being a difference between media opinion as to guilt and a public revelation of guilt by an accused’s own counsel. (6) Whilst the potentially prejudicial finding of Martin AJ that his Honour was ‘fairly certain’ of [the applicant’s] guilt was publicised widely, so also were comments favourable to [the applicant] — such as his Honour’s comments that ‘a nagging doubt remains’, ‘a substantial miscarriage of justice occurred’, that [the applicant] had been ‘denied a fair chance of acquittal’, and ‘the issue of guilt was determined on the basis of deeply flawed forensic evidence’. 662 In expansion of the submission noted at (5) in the preceding paragraph, counsel noted that in R v Glennon, Brennan J had referred to the certainty that a new Darwin jury would have known that Tuckiar’s counsel at the first trial had revealed knowledge of his client’s guilt. 663 Counsel submitted that the present case was more akin to one where, after a finding of guilt by a judge sitting alone, conviction was overturned and a new trial was to be held. 664 Counsel relied, in support of the submissions noted at [661](6) above, upon the affidavit of Laura Keys affirmed 14 February 2016 and certain exhibits thereto. These exhibits were described as representative, not exhaustive. They included the two articles, in the form of an ‘expose’, published during the currency of the stay application, one of them on the front page of the Canberra Times, to which I referred 205 at [35] above.
667 Conclusions: There is no doubt that there has been a great deal of reporting of events concerning Winchester’s death, the inquest, the trial, the appeal, the Miles Inquiry, the
205 Stay Reasons [655]–[664] (citations omitted). Martin Inquiry and the Director’s decision to proceed with a retrial. These matters have been aired in articles in the local and Capital City press, the ABC, on television and online. 668 Having read all the (representative) material relied upon by Eastman and relied upon by the Crown, I accept that the balance of reporting has been adverse to Eastman. But even going back to the time of the initial inquest, much material was published which was favourable to Eastman. It concerned, for instance, his complaints of police harassment. Again, a good deal of time seems to have been taken, at the initial inquest, enquiring into an allegation that the deceased had been ‘on the take’ in relation to the so-called ‘Pine Lodge’ matter. Extensive coverage was also given at this early time to the prospect that Winchester’s death was a Mafia revenge killing. 669 Whilst Eastman was described on many occasions as the principal suspect, and, after his conviction, as a convicted murderer, there always appears to have been two reported sides to the question of Eastman’s involvement in the murder of Winchester. Within many articles there could be found material both adverse to and favourable to Eastman. Those two strains of reporting go back to the time of the initial inquest. 670 Even accepting that the weight of publicity has been adverse to Eastman, the situation is not in any way comparable with the relentlessly unfavourable reporting in the media, in multiple platforms, which occurred in Dupas; or, indeed, with the circumstances of cases described by Weinberg JA in that matter when it was before the Victorian Court of Appeal. Eastman has had a number of supporters over the years, and exhibited articles show that they have been given a very free hand in expressing their views, at times in ways which have taken the form of special pleading. That is by no means to suggest, I add, that special pleading has been all one way . 671 I do not agree with the Crown’s submission that the situation is to be equated with a case of a judge sitting alone whose finding of guilt is overturned on appeal. If there is a retrial in such a case, it will almost certainly be conducted by a judge sitting alone, who will not to be distracted from his or her task by either the finding of guilt or the successful appeal. 672 On the other hand, I reject the submission for Eastman that the present case is akin to Tuckiar by reason of the widely reported observation of Martin AJ that he was ‘fairly certain’ of Eastman’s guilt. This was not a statement by Eastman’s own legal practitioner that the client had admitted guilt. It was the observation of a judge, sitting as a board of inquiry, who had also concluded that a ‘nagging doubt’ remained as to Eastman’s guilt. The existence of ‘nagging doubt’, as the Full Court remarked, is not a statement of the legal test of reasonable doubt. But a lay reader might well, I think, so understand it. 673 Further, the Crown was correct in submitting that Martin AJ made many statements in his report as to the flaws in the Crown case, saying also that he was satisfied there had been a miscarriage of justice and that Eastman had been denied a ‘fair chance of acquittal’. A layman would be unlikely to understand the confined meaning which a lawyer would understand was conveyed by that phrase. 674 In all, I consider that the weight which could be attributed to adverse publicity, as being a factor in support of Eastman’s application for a permanent stay, is not at all large. Very evidently, had it been relied upon as a circumstance which of itself 206 required a stay of proceeding, the stay application must have failed.
We are not persuaded that there was any error in this analysis.
On appeal, it was emphasised that the publicity complained of further erodes the fair and objective consideration of the defence. In other words, it is a factor which must be considered in combination with the other matters raised under ground 2.
206 Ibid [667]–[674] (citations omitted).
The counterbalance of public interest
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We accept that the public interest in confidentiality which underpins s 130 of the Evidence Act may overwhelm other aspects of the public interest. Indeed, s 130(5)(f) expressly contemplates that a direction under s 130 may necessitate a stay of prosecution.
Nevertheless, for the reasons we have explained above, we are not persuaded that this trial has reached a point at which such a stay could be justified.
Cumulative unfairness
The applicant submits that Ashley AJ’s Stay Reasons do not demonstrate an awareness that the applicant will be at unfair disadvantage at a retrial because of a combination of factors. In our view, a fair reading of his Honour’s reasons as a whole demonstrates that he took account of the matters relied on by the applicant both individually and in combination. Amongst other things, we note the following key statements in the Stay Reasons. Early in his Stay Reasons, his Honour stated that whilst dealing with specific submissions, he had never lost sight of the single question requiring his determination: ‘Has [the applicant] satisfied me, in the totality of the 207 circumstances, that he should have the relief which he seeks?’ In stating the principles to be applied, his Honour expressly recognised that the applicant’s case 208 was put as one which relied on a combination of circumstances. In his conclusions, the judge reiterated that there was a single question for his 209 determination. Ultimately, in expressing his conclusions, his Honour assumed that the applicant was entitled to rely upon every one of the circumstances on which he sought to rely — an assumption, which as his Honour observed, might be considered 210 unnecessarily favourable to him. Lastly, his Honour expressed his final conclusion 211 in a global fashion.
Moreover, stepping back and having regard to the cumulative weight of the matters raised under ground 2, we are not ourselves persuaded that the applicant has demonstrated that Ashley AJ was bound to stay the prosecution for reasons bearing on the fairness of any retrial.
In this regard, it is appropriate to return to the fact that the ground attacks the weight which it may be inferred Ashley AJ accorded to the matters the applicant relies on. The words of Gleeson CJ in R v Matovski are apposite:
The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument
207 Ibid [47]. 208 Ibid [71] quoted above at [36]. 209 Ibid [763]. 210 Ibid [811]. 211 Ibid [812] quoted above at [171]. and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage 212 …
Grounds 3 (oppression resulting from a retrial) and 4 (bring the administration of justice into disrepute)
These grounds are again directed to questions of the weight to be given to factors relevant to the Court’s decision.
The applicant relies on the matters agitated under ground 2 in support of grounds 3 213 and 4 together with the following considerations:
(a) the case presented against the applicant at the first trial has been found to have resulted in a miscarriage of justice;
(b) the applicant has spent 19 years in custody following a wrongful conviction;
(c) throughout the period of the applicant’s imprisonment, prosecuting authorities were or ought to have been aware of matters which occasioned the miscarriage of justice;
(d) a retrial will be lengthy, complex and costly (we would add that it will necessarily be stressful for the applicant).
For the reasons we have explained in our consideration of ground 2, we are not persuaded that the applicant’s fair trial has been compromised by the matters he raises in a way or combination of ways which demonstrates that Ashley AJ was wrong to refuse to stay the proceeding. Likewise, we are not persuaded that Ashley AJ reached a view of the circumstances relied on under grounds 3 and 4 which was not open to him. The first, second and fourth factors referred to above were self-evidently relevant to the exercise of the Court’s discretion. The basis of the third factor was effectively pressed under ground 7 to which we shall shortly come.
Ultimately, grounds 3 and 4 go to factors which the judge was required to take into consideration, but which cannot be said to compel the conclusion for which the applicant contends. The judge did consider each of the matters relied upon and further considered their combined force as he assessed it. Properly analysed, the applicant’s essential complaint is one with respect to the cumulative weight given by Ashley AJ with respect to factors favouring a stay, as against those that favour a continuation of the trial. The matters relied upon by the applicant fall to be balanced against those identified in the judge’s final conclusion at [812] which we have quoted at [171].
This conclusion was open to Ashley AJ and the basis on which it was expressed is 214 directly responsive to the principles stated by the High Court in Walton v Gardner 215 and Dupas. Leave to appeal on proposed grounds 3 and 4 should be refused.
212 (1989) 15 NSWLR 720, 723 (Lee CJ at CL and Grove J agreeing). 213 [redacted] 214 (1993) 177 CLR 378, see [50] above. 215 (2010) 241 CLR 237. Characterising the ‘alternative hypothesis’ as ‘speculative’ (Ground 5)
Proposed ground 5 contends that Ashley AJ ‘erred in concluding that the alternative hypothesis to be advanced by the [applicant] at any retrial amounted to no more than speculation’.
The gist of ‘the alternative hypothesis’ relied upon by the applicant was that, rather than the applicant being the killer, Mr Winchester was murdered by a member of an 216 Italian organised crime group.
Paragraph 13 of the order providing for the holding of the inquiry undertaken by Martin AJ directed that there be an inquiry into ‘a clear hypothesis contained in the evidence given to the coronial inquest and in available contemporaneous police intelligence consistent with the guilt of others who are in no way connected to the 217 applicant…’.
After consideration of a host of material — including fresh evidence canvassed in the confidential section of his report — Martin AJ ultimately said of the alternative hypothesis:
As I have said, leaving aside the fresh evidence discussed in the confidential section of the Report, the evidence relevant to Paragraph 13 establishes a number of matters relating to members of the organised crime group, including the existence of a motive to kill the deceased. However, those matters fall well short of positively pointing to the group or an individual member as the offender. Suspicion is generated, but it does not rise to the level of a possible hypothesis. The fresh evidence heard in private hearings adds a new dimension. It is now impossible to predict how that evidence would be received by a jury today, or what weight would have been given to it in 1995. But it cannot be ignored. The fresh evidence potentially lifts suspicion to the level of a reasonable hypothesis consistent with the applicant’s innocence. I emphasise this conclusion is reached on the basis that the ‘evidence’ concerning the alternative hypothesis is taken at face value. As I said, most of that ‘evidence’ is in a hearsay form and the credibility of the primary witness, [redacted], is decidedly suspect. In this position of uncertainty with respect to the evidence obtained in the private hearings, the appropriate conclusion is that such evidence adds weight to the view that the conviction 218 cannot stand. …
And further: I am unable to agree with the submission that the case is ‘overwhelming’. While a strong circumstantial case remains, based on the admissible and properly tested evidence the case for the prosecution is not overwhelming. There is also material pointing to an 219 alternative hypothesis consistent with innocence, the strength of which is unknown.
216 Stay Reasons [9]. 217 Martin Report [38]. 218 Ibid [1828]–[1830] (emphasis added). 219 Ibid [1835] (emphasis added).
And of crucial importance to the present ground, Ashley AJ concluded: I have mentioned, on several occasions, the fact that in respect of certain matters advanced in support of the alternative hypothesis there is the certainty of evidence pertaining to the same issue adverse to [the applicant]. I have done so in order to illustrate that, when considering the alternative hypothesis, it is necessary to take into account the entirety of the Crown case on the one hand, and what is said in support of an alternative hypothesis on the other. As matters presently stand, I do not consider that the alternative hypothesis rises above speculation. I am far from persuaded that what has been shown to be available to [the applicant] in that connection, taken in conjunction with his other criticism of the Crown case, leads to a conclusion that the Crown case is not a strong 224 one.
By dismissing the alternative hypothesis as speculative, so the applicant submitted, Ashley AJ departed without good reason from the findings of Martin AJ. The applicant argued that the conclusion had been reached by the Martin Inquiry that the alternative hypothesis could amount to a reasonable hypothesis consistent with innocence. [redacted].
In our view, the applicant’s submissions mischaracterise what Ashley AJ found.
[redacted]
[redacted]
Moreover, in the context of dealing with the submission that the Crown case was not strong, Ashley AJ made it plain that in his view the alternative hypothesis does not rise above speculation as ‘matters presently stand’. His Honour was not persuaded that the evidence shown to be available (taken in conjunction with other criticisms of the Crown case), led to a conclusion that the Crown case is not a strong one.
What Ashley AJ was endeavouring to convey in the impugned passage is, we think, that it is conjectural to assume that the otherwise strong Crown case will be weakened by the evidence concerning the alternative hypothesis until that evidence is adequately tested. It is because the strength of the evidence to support the alternative hypothesis is unknown — [redacted] — that it cannot be said that the alternative hypothesis rises above speculation. Looked at in this way, in our opinion it cannot be concluded that Ashley AJ erred.
[redacted]
220 Stay Reasons [601]. 221 Ibid [602]. 222 Ibid [602]. 223 Ibid [610]–[611] (emphasis added). 224 Ibid [616] (emphasis added).
Prosecution’s failure to disclose relevant material (Ground 7)
Evidence concerning GSR given by Robert Barnes — who at relevant times was 225 attached to the SFSL and an employee of Victoria Police (or ‘VicPol’) — was a significant aspect of the Crown’s case at trial. The gist of Barnes’ evidence was that his investigations had established a reliable coincidence between GSR found at the crime scene and GSR found in the applicant's car. Barnes testified that the GSR in each case came from PMC ammunition. Although that evidence was of itself significant, it had ‘a flow-on effect’, since two PMC cartridge cases were found at the crime scene, and, as we have mentioned, the Crown sought to show that those two cases had been fired from a Ruger 10/22 rifle which had been sold to the applicant by 226 Louis Klarenbeek shortly before the killing.
Ground 7 complains that Ashley AJ erred in assessing the significance of the failures of the prosecution to disclose relevant material by failing to take into account the conduct of Victoria Police; by failing to take into account the significance of adverse curial and coronial findings regarding Barnes; by misinforming himself of the nature of Barnes’ conduct at the SFSL and the circumstances of his departure from employment with Victoria Police; and by discounting the significance of the prosecution’s inadequate disclosure by reference to the conduct of the defence at the first trial, and in particular, the failure of the defence to conduct its own inquiries into Barnes’ work.
So as to understand the manner in which the applicant seeks to advance ground 7, it is necessary to turn in a little more detail to the evidence concerning GSR led at the 227 applicant’s trial. At the outset, however, it is important to note that — save as to continuity — the Crown has largely abandoned reliance on Barnes’ evidence for the purposes of the proposed retrial.
As we have indicated, the burden of Barnes’ evidence connected GSR found at the murder scene and GSR found in the applicant’s Mazda motor car. According to Barnes, the GSR in each case came from PMC ammunition. Two PMC cartridge cases — which the Crown sought to show had been fired from a Ruger 10/22 rifle sold to the applicant by Klarenbeek — were found at the crime scene.
At the applicant’s trial, Sergeant Peter Nelipa said that when he vacuumed the driveway and surrounding area of the murder scene, he located a number of greenish particles and some other particles that were described as severely charred chopped disc propellant particles (‘the chopped disc particles’). Barnes subsequently analysed them and purported to identify the greenish particles as partially burnt propellant particles of PMC .22 ammunition. The evidence was, however, that the chopped disc particles were not consistent with PMC ammunition, but were consistent with other types of ammunition, including Sterling and CCI brands.
Evidence was given as to how GSR is produced. Cartridge cases contain primer and propellant. Upon impact with the firing pin of a firearm, the primer ignites the propellant which expels the bullet from the cartridge case and the barrel of the rifle.
225 See n 10 above. 226 Stay Reasons [74]–[75], [89]. 227 It was summarised by the Full Court in the course of dealing with the conviction appeal: (1997) 76 FCR 9, 28–30. The propellant burns at high temperatures, and the primer produces hot gases that condense as they cool, producing characteristic primer particles that are made up of one or more of the original components of the primer (sometimes together with very small quantities of material from the bullet or the cartridge case). It is invariable that some of the propellant will not be entirely consumed by combustion. Partially burnt particles will thus be left in the firearm and on objects in close proximity to the end of the barrel.
Barnes claimed to have undertaken an extensive examination of the ammunition types that were available in Australia in 1989. He purportedly found that, of the 151 different .22 calibre ammunition types available in Australia, PMC was unique. Barnes also visited the FBI laboratories in the United States and determined another 23 brands of ammunition could be distinguished from PMC .22 ammunition. The significance of Barnes’ investigations was that the presence of the greenish particles in and about Mr Winchester’s car was consistent with Mr Winchester having been shot with PMC ammunition.
As we have mentioned, evidence was given that other propellant particles — the chopped disc particles which were inconsistent with PMC .22 ammunition — had been recovered from Mr Winchester’s body and from inside his car. The Crown thus needed to explain how — if Mr Winchester suffered only two bullet wounds, and only two PMC cartridge cases were found at the murder scene together with partially burnt propellant particles from PMC .22 ammunition — the presence of the chopped disc particles could be accounted for.
In the result, the explanation proffered by the Crown for the presence of the second ammunition type was that Klarenbeek had test fired the Ruger 10/22 rifle before he advertised it for sale. Subsequently he recovered some of the spent cartridge cases from that test firing. Three of the seven .22 cartridge cases that Klarenbeek gave to police were Stirling and CCI brands, and one of them had been identified as having been fired by the same firearm used to kill Mr Winchester. Barnes gave evidence that he investigated whether the chopped disc particles could be explained by their having been trapped in the rifle from earlier firings. In his testing, Barnes used both rifles fitted with, and rifles without, a silencer. His evidence was that a silencer is fitted with baffles that muffle sound. Those baffles collect debris, including propellant and primer particles, that may easily be dislodged by movement, such as shaking. As subsequent shots are fired, some of these particles are ejected from the barrel. Thus, the conclusion that the Crown sought to establish was that the firearm that had fired the two PMC bullets had earlier been used to fire Stirling or CCI cartridges.
A search of the applicant’s motor vehicle and an analysis of the results purported to confirm the presence of primer particles that were consistent with PMC ammunition. It was claimed that the same particles were also found in Mr Winchester’s vehicle and around the area of both wounds. Purportedly, propellant particles from PMC ammunition were also found in the applicant’s car, in Mr Winchester’s car and in the driveway around the car. Chopped disc particles — inconsistent with PMC ammunition — were also found in Mr Winchester’s hair and in both vehicles.
Apart from Barnes, the Crown also called a number of independent expert witnesses concerning the identification of GSR. It is unnecessary to set their evidence out in any detail. It is enough to observe that, at trial, those witnesses did not challenge Barnes’ conclusions or methodology.
The evidence is overwhelming that Mr Barnes lacked independence and was biased in favour of the prosecution. If disclosed and presented to the jury, that evidence would have been devastating to Mr Barnes’ credibility. Even considered in isolation, this evidence was highly important to the defence in its challenge to the reliability and credibility of Mr Barnes. If such evidence had been coupled with the facts underlying the disciplinary charges and the matters proven by the audit of Mr Barnes’ case files, the entire complexion of the forensic case would have changed dramatically. In stark contrast to the situation at trial where defence Counsel was struggling to find any chink in the armour of Mr Barnes, it would have been the prosecution struggling to defend the integrity and reliability of 231 Mr Barnes.
Martin AJ opined that the ‘cumulative effect’ of the various matters to which he had regard ‘leaves no room for doubt’ that Barnes’ opinion at trial that particles from the boot of the applicant’s car were from PMC ammunition ‘lacked a proper scientific 232 foundation’.
Importantly, however, Martin AJ determined that any failure to reveal information impinging upon Barnes’ credibility and reliability was inadvertent. He said:
Significant information and material which would have directly and indirectly assisted the defence were not disclosed to the defence. The failure by the DPP was inadvertent, but it was a failure with respect to a fundamental feature of a fair trial which left the defence without knowledge of material relevant to the forensic evidence at the heart of the 233 prosecution case.
Moreover, when determining to order a retrial, the Full Court accepted the findings of Martin AJ 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’, and that the ‘failures to disclose were inadvertent and 234 occurred as a result of a combination of circumstances’.
In the application before Ashley AJ, the applicant challenged in certain respects the finding that the relevant non-disclosure had been ‘inadvertent’. That position was not, however, maintained in this Court (at least so far as Barnes was concerned). So much is made clear by the following exchanges in the course of oral argument with respect to the present ground:
[JUDGE]: Why shouldn’t Barnes just be seen as a consultant like any other hired consultant?
228 Martin Report [1798]. 229 Ibid [1123]. 230 Ibid [1123]. 231 Ibid [1117]. 232 Ibid [1124]. 233 Ibid [1120]. 234 (2014) 9 ACTLR 178, 263 [291]. [SENIOR COUNSEL]: But he’s working for VicPol who make him available to the AFP. The AFP and VicPol are therefore working together. After all VicPol are conducting a review of the Winchester case for the AFP, I mean it’s a marriage between them, it’s not a question of there being a mere lack of agency. The substance of the relationship is one of a defective marriage. [JUDGE]: So do you accept that at the time that Barnes was brought in by the AFP the AFP had no knowledge of the various things that might impinge upon Barnes’ credibility and reliability? [SENIOR COUNSEL]: Because VicPol didn’t tell them. [JUDGE]: So that’s a yes in answer to my question? [SENIOR COUNSEL]: Yes, yes. … [JUDGE]: Didn’t Ashley AJ come to the view that not only did the AFP not know about the shortcomings with regard to Barnes, but they’d been positively misled? [SENIOR COUNSEL]: Yes. [JUDGE]: In circumstances where the AFP have been positively misled by VicPol you’d accept, I would take it, that they can’t be — they can’t come in for criticism? [SENIOR COUNSEL]: Well, they do come in — well - - - [JUDGE]: With respect to non-disclosure concerning Barnes. If they don’t know about something, they could hardly disclose it. [SENIOR COUNSEL]: Well, they should have known about it, your Honour. [JUDGE]: But do you accept — you don’t try and controvert Ashley AJ’s finding that they didn’t know about those things? [SENIOR COUNSEL]: No, I don’t controvert that. [JUDGE]: And you don’t, I take it then, insofar as it’s said that non-disclosure by the Crown was inadvertent, you don’t controvert that either — or don’t seek to? [SENIOR COUNSEL]: I’m sorry, your Honour? [JUDGE]: Insofar as it was said that the Crown — their non-disclosure about Barnes was inadvertent, you don’t seek to controvert that either? [SENIOR COUNSEL]: In this matter — that is, these matters in relation to Barnes - - - [JUDGE]: In relation to Barnes, yes. [SENIOR COUNSEL]: No, we couldn’t argue with that. The AFP didn’t know about it. But 235 the AFP should have known about it. …
Accepting that PMC was the ammunition used for the murder, at best the reliable evidence established that green flattened ball particles were found in the [applicant’s car] boot which were consistent with PMC and numerous other types of ammunition, including ammunition the applicant said he fired in rifles which he placed in the boot many months before the murder. In this situation, the presence of particles in the boot was still a piece of
235 Emphasis added. circumstantial evidence. Its weight depended on the jury rejecting as a possibility that the source of the particle was one of the rifles the applicant had placed in the boot. … Analysed in this way, it is apparent that the presence of particles in the [applicant’s car] would have remained as a piece of circumstantial evidence capable of tending to connect the [applicant’s car] to the scene, but in a far less powerful way than the way in which the 236 evidence was presented to the jury.
Returning to the submissions in support of this ground, before Ashley AJ the respondent accepted that there were a number of matters known to Victoria Police at the time of the applicant’s trial which ‘could ground legitimate attacks on [Barnes’] 237 credit’. Counsel submitted, however, that ‘neither the Crown nor AFP were seised’ of those matters.
In this Court the applicant submitted, first, that Victoria Police ought to be viewed as part of the prosecution, since they were ‘concerned on behalf of the Crown in the 238 preparation and conduct of the prosecution’. Secondly, it was submitted that Victoria Police was in possession of information which bore materially on Barnes’ credibility and reliability, but its members misconducted themselves by failing to disclose that information to the defence. Thirdly, it was submitted that the failure of Victoria Police to disclose significant matters affecting Barnes’ credibility and reliability ought to be categorised as a lack of disclosure by the prosecution. In assessing the gravity of the misconduct, so it was submitted, it was no answer that the AFP and DPP had not had the information disclosed to them. The effect on the fairness of the applicant’s trial was the same. Information that was in possession of Victoria Police concerning Barnes’ credibility and reliability should be regarded as in the possession 239 of ‘the Crown as an indivisible entity’.
The applicant submitted that the following considerations supported the conclusion that the prosecution’s duty of disclosure extended to Victoria Police:
first, Victoria Police worked closely with the AFP for some years on the investigation of Mr Winchester’s murder investigation, by virtue of Barnes’ involvement in the investigation from 1989 until he left Victoria Police;
secondly, in 1992, Victoria Police provided an independent review of the investigation and recommended Barnes' continued involvement; and
thirdly, Victoria Police allowed Barnes to continue to use its laboratory to investigate Mr Winchester’s murder after his employment at the SFSL had ceased.
236 Martin Report [1125], [1127] (emphasis added). See also Stay Reasons [90]–[91]. 237 Stay Reasons [292]. 238 R v Lucas [1973] VR 693, 696 (Smith ACJ). 239 R v Blackledge [1996] 1 Cr App R 326, 337. been disclosed by Victoria Police, his Honour ‘would have concluded that they represented serious failures to fulfil prosecutorial duties’. Those matters included:
first, Barnes was subject to an internal investigation, which Victoria Police considered to be of a ‘serious nature’ — which resulted in him being stood aside from his position as an Assistant Director of the SFSL — in relation to his charging for private work on Victoria Police time;
secondly, during the internal investigation, several instances of Barnes’ ‘serious’ failures to adhere to laboratory policies and procedures were uncovered;
thirdly, Barnes had conceded his failure to comply with these policies and procedures;
fourthly, Barnes had admitted to Victorian Police that, as a result of ‘considerable stress’ that he was experiencing, he was finding it increasingly difficult to focus his energies on the difficult and critical aspects of the Winchester murder investigation, and that he was concerned that he would be distracted from the Winchester matter by reason of a Victorian Police ‘campaign’ against him;
fifthly, as a result of Barnes’ resignation from the SFSL, the Chief Commissioner of Police decided to withdraw pending charges against him;
sixthly, while the trial was in progress, the Director of the SFSL, David Gidley — who headed the laboratory, and had worked there with Barnes as his superior for some years — internally reported that Barnes had made an ‘inaccurate exaggeration’ when he asserted that he was the ‘major ballistics expert’ in the Winchester case; that Barnes’ ‘urge to impress by assisting to extremes is effecting [sic] how far he goes with some points’; and that Barnes could persist ‘with inaccuracies and exaggerations’ in future cases (‘the most notable being the Winchester murder trial in Canberra, currently underway’);
seventhly, within two weeks of the applicant being sentenced to life imprisonment, Barnes was being cross-examined at an inquest relating to the death of a man named Butterley, in circumstances in which Victoria Police was advised by its solicitors that the attack on Barnes at the inquest was ‘extensive’; and that ‘one of the greatest critics of Mr Barnes appear[ed] to be the State Coroner … [Barnes being] accused of providing a deliberately misleading report in relation to the issue of gunshot residue found on [an interested party]’;
eighthly, Barnes used the term ‘indistinguishable’ to describe the relationship between exhibits, the use of that term departing from the language of other scientists at the laboratory to an extent that it had a bearing on the appropriateness of Barnes’ terminology;
ninthly, Barnes’ evidence had been held to be misleading by the Full Court of the 240 Supreme Court of Victoria in R v Fyffe; and
tenthly, after leaving the employ of Victoria Police, Barnes had taken numerous files from the SFSL without permission — including documents relating to the Winchester investigation — and had stored them in disarray in a shed at his
240 Unreported, Victorian Court of Criminal Appeal, Crockett, Marks and Southwell JJ, 7 June 1989. residence, such conduct bearing on Barnes’ professionalism and reliability, and raising questions about bias and his attachment to his work in the investigation.
It must be accepted that Barnes’s unsatisfactory practices and procedures, known to Mr Gidley in 1992, were capable of founding an attack upon Barnes’s reliability as a witness. Had the full extent of the criticism of Barnes’s practices and procedures as known by SFSL been provided to AFP at a time before [the applicant’s] trial, then AFP ought to have either disclosed them to the prosecution legal team, or else have made disclosure direct to [the applicant]. If disclosure had been made to the legal team, then no doubt there should in turn have been disclosure to [the applicant]. Martin AJ was in no doubt, I remind 241 myself, that this would have been done.
But the fact is that AFP did not know the full story; and, indeed, there are indications that it was misled. Thus it is that the question arises whether Barnes and/or Victoria Police should be regarded as agents of AFP, and thereby — as [the applicant] would have it — under a duty of full disclosure. No satisfactory evidence was adduced as to the nature of the relationship between AFP and Victoria Police. Not one document was placed before me which cast light on the nature of the relationship at a relevant time. [The applicant’s] argument that there was an ‘agency relationship’ was one of bald assertion. It is as likely, if not more likely, that the relationship was one of fee for service. Further, it would be a mistake to treat the asserted agency relationship, or, indeed, any relationship between SFSL and AFP, as one that continued subsequent to Barnes leaving SFSL. Any dealings between AFP and Barnes thereafter appear to have been either [242] between AFP and AGAL, or else between AFP and Barnes. It is at least possible that some of the work fell into the second category. There was no analysis for [the applicant] of the way in which there could be said to be a subsisting agency arrangement between AFP and Victoria Police with respect to Barnes’s work after November 1993. But even if there was ever some agency relationship, the question whether the presumed agent had an obligation to make a disclosure either to the assumed principal or to [the 243 applicant] was not the subject of submissions at all.
Martin AJ was undoubtedly correct in observing that an investigating authority may be treated as part of ‘the prosecution’ in the context of non-disclosure. But that begs the question whether Victoria Police could be so categorised in the present case. At no stage in his Report, I note, did Martin AJ treat Victoria Police, as distinct from AFP, as owing [the applicant] a duty of disclosure. At one point he characterised ‘the prosecution’ as 244 extending beyond the Director, and those instructed by him, to the AFP — no mention being made of Victoria Police. The whole tenor of his Honour’s analysis of the disciplinary charges issue was that he regarded AFP as part of the prosecution team, but not Victoria Police.
241 Stay Reasons [335]. 242 Australian Government Analytical Laboratory. Barnes was an employee of the SFSL, an arm of Victoria Police, until 1993. He was then appointed to AGAL: Stay Reasons [318] n 221. 243 Stay Reasons [336]–[339]. 244 Martin Report [275]. In the circumstances and state of submissions which I have described, I am not persuaded that the failure of Victoria Police, at any time that was pertinent, to make disclosure of the problems attending Barnes’s practices and procedures ought be categorised as a want of 245 disclosure by ‘the prosecution’. …
A number of authorities concerned with prosecutorial non-disclosure were cited by the 246 247 applicant and by the respondent. The respondent argued that none of the cases referred to by the applicant in relation to this ground of appeal relate to an application for a stay of proceedings, each being concerned with an appeal against conviction. Indeed, on the stay application, the respondent submitted that no case had been found in Australia where a stay of proceedings had been granted on the basis of a failure of the prosecution to disclose evidence to an accused, let alone inadvertent 248 249 failure. This submission was accepted by Ashley AJ. Our own researches, we 250 note, have failed to reveal such an authority.
Based on curial experience, broad categories of cases may be identified where the 251 jurisdiction to stay proceedings as an abuse of process has been invoked. Thus, subject-matter which has been the foundation of an application to permanently stay criminal proceedings has included: 252 the use of procedural devices to avoid adverse curial rulings; 253 the abuse of committal proceedings; 254 prosecutions prompted by, or continued for, improper motives; 255 the bringing of multiple charges or proceedings; 256 breach of bargain; 257 undue delay in bringing, or continuing, a prosecution;
245 Stay Reasons [342]–[343]. 246 Including R v Lucas [1973] VR 693, 696; R v Blackledge [1996] 1 Cr App R 326, 337; R v Livingstone [1993] Crim LR 597; R v Forrest (2016) 125 SASR 319, 331 [62]–[63]; Grey v The Queen (2001) 184 ALR 593; R v Lawless (Unreported, Victorian Court of Criminal Appeal, Young CJ, Lush and O’Bryan JJ, 10 May 1978). 247 The respondent cited the same authorities. 248 Stay Reasons [59]. 249 Stay Reasons [61]. 250 The power to stay proceedings because of a failure to provide timely disclosure was recognised, although not applied, in Emanuele v Cahill (1987) 18 FCR 304 (Neaves J). In Adams v Anthony Bryant (1986) 15 FCR 513, Wilcox J considered that a temporary stay of proceedings might be granted in a case of non-disclosure until adequate disclosure be made. 251 See D M Paciocco, The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept, (1991) 15 Crim LJ 315, 318–20; R Pattenden, Judicial Discretion nd and Criminal Litigation (2 ed, Clarendon Press), 32–8. 252 R v Jell; Ex parte A-G (Qld) [1991] 1 Qd R 48; R v Derby Magistrates’ Court; Ex parte Brooks [1984] 80 Cr App Rep 164. 253 Barton v The Queen (1980) 147 CLR 75. 254 Williams v Spautz (1992) 174 CLR 509. 255 Connelly v DPP [1964] AC 1254; DPP v Humphrys [1977] AC 1; Maxwell v The Queen (1996) 184 CLR 501; Western Australia v Oates (2004) 148 A Crim R 202; DPP (NSW) v Shirvanian (1998) 44 NSWLR 129; Joud v The Queen (2011) 32 VR 400; R v Garth (2008) 21 VR 203; Clark v The Queen [2016] VSCA 96. 256 R v Green (1983) 33 SASR 211, 232; Barac v DPP (Qld) [2009] 1 Qd R 104. 257 Jago (1989) 168 CLR 23; R v Edwards (2009) 83 ALJR 717; R v Clarkson [1987] VR 962. 258 259 illegal conduct by police; or other prosecutorial misconduct (including 260 261 wrongful deportation or illegal extradition ); 262 where a prosecution is foredoomed to fail; 263 loss or destruction of evidence; 264 incapacitation of the accused; and 265 pre-trial publicity.
We remind ourselves that the categories are not closed. But it is significant that there is no reported case of a permanent stay having been granted for alleged non-disclosure by the prosecution.
It is convenient at this point to turn to some of the cases that bear on the extent of the prosecution’s duty of disclosure.
Adequate disclosure of the prosecution case to an accused person is an assumed and fundamental aspect of modern criminal litigation. It is axiomatic that a person charged with a crime is entitled to know the basis of the prosecution case against him (or her). The need for disclosure is, however, a relatively modern feature of the 266 criminal trial.
The common law did not always recognise that the accused had a right to — and the prosecution had a duty to provide — disclosure. So much may be gleaned from R v 267 Holland, a case which nowadays is generally ignored in the context of the present 268 269 discourse. In Holland, the accused faced corruption charges related to a position he had held in the East India Company. Much of the prosecution case flowed from a report of a Board of Enquiry. The defence was unaware of the contents of the report and sought an order for its inspection in advance of trial. Inspection was opposed by the Attorney-General, on the basis that it ‘would lead to the most 270 mischievous consequences’. In refusing the defence application, Lord Kenyon said:
258 Ridgeway v The Queen (1995) 184 CLR 19; R v Looseley [2001] 1 WLR 2060. 259 R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42; Wilson v The Queen [2015] NZSC 189. 260 Moti v The Queen (2011) 245 CLR 456. 261 R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42; Mokbel v DPP (2013) 40 VR 625. See also R v Nitu [2013] 1 Qd R 459. 262 R v Smith [1995] 1 VR 10; Little (a pseudonym) v The Queen (2015) 45 VR 816. 263 R v Edwards (2009) 83 ALJR 717; Aydin v The Queen (2010) 28 VR 588; El Bayeh v The Queen (2011) 31 VR 305; R v Reeves (1994) 122 ACTR 1; DA v The Queen [2000] ACTSC 58. 264 Ross v Tran (1996) 87 A Crim R 144; Wells v The Queen [2010] VSCA 100. See also Subramaniam v The Queen (2004) 79 ALJR 116. 265 Dupas (2010) 241 CLR 237; R v Mokbel (2009) 26 VR 618. 266 The development of the requirements of disclosure in criminal cases is traced in: D Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?’ (2006) 25 University of Tasmania Law Review 111. See also Sobh v Police Force of Victoria [1994] 1 VR 41. 267 (1792) 4 D & E 691; (100 ER 1248) (‘Holland’). 268 Although see Maddison v Goldrick [1975] 1 NSWLR 557. 269 (1792) 4 D & E 691; (100 ER 1248). 270 Ibid 691. I am extremely clear that we ought not to grant this application. There is no principle or precedent to warrant it. Nor was such a motion as the present ever made; and if we were 271 to grant it, it would subvert the whole system of criminal law.
Buller J described the prevailing practice as follows:
The practice on common law indictments, and on informations on particular statutes, shews it to be clear that this defendant is not entitled to inspect the evidence, on which the 272 prosecution is founded, till the hour of trial.
And Grose J observed:
It is clear that neither at common law, or under any of the statutes, is the defendant entitled as a matter of right, to have his application granted. And if we were to assume a discretionary power of granting this request, it would be dangerous in the extreme, and 273 totally unfounded on precedent.
… But the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown. In the course of that process issues of fact will have been identified which may assist or undermine the Crown case. The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed. The question whether one or more of the Crown witnesses is credible or reliable is frequently one of the most important ‘issues’ in the case, although the material which bears upon it may be, as Steyn LJ 275 observed [in the Court of Appeal in the present case] collateral.
271 Ibid 692. 272 Ibid 694. 273 Ibid. 274 R v Brown (Winston) [1998] AC 367 (‘Brown’). 275 Ibid 377 (emphasis added). See also Mallard v The Queen (2005) 224 CLR 125, 153 [74] (Kirby J) (‘Mallard’). A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on 276 grounds of credibility, of the defence witnesses.
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The 277 golden rule is that full disclosure of such material should be made.
In R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376–377, with the comment that ‘an issue in the 278 case’ must be given a broad interpretation…
The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law … of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of 279 exculpatory evidence by or for the accused.
276 Brown [1998] AC 367, 379. 277 [2004] 2 AC 134, 147 [14] (‘H’). 278 (2004) 60 NSWLR 454, 468 [48]. See also R v Spiteri (2004) 61 NSWLR 369, 373–4 [17]. 279 Mallard (2005) 224 CLR 125, 155 [81] (emphasis added) (citation omitted). 280 For example, R v K (1991) 161 LSJS 135; R v Paraskeva (1982) 76 Cr App Rep 162; R v Garofalo [1999] 2 VR 625 (prior convictions); Grey v The Queen (2001) 184 ALR 593 (‘letter of comfort’); R v Farquharson (2009) 26 VR 410 (pending charges). 281 R v CPK (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Clarke and Hulme JJ, 21 June 1995); R v Lewis-Hamilton [1998] 1 VR 630; D v Western Australia (2007) 179 A Crim R 377; Greensill v The Queen (2012) 37 VR 257. 282 See Easterday v The Queen (2003) 143 A Crim R 154. 283 See Mallard (2005) 224 CLR 125, 156–7 [85]–[86] (Kirby J); H [2004] 2 AC 134, 147 [16] (Lord Bingham of Cornhill); R v Ward (Judith) [1931] 1 WLR 619, 674.
Had counsel sought to cross-examine [Dr ZS] on the Medical Board’s findings against him, and if necessary, to prove them, he would have been entitled to do so. Had that material been before the jury, it may well have caused them to have had a reasonable doubt about whether or not the applicant had in fact told [Dr ZS] that when he stabbed the deceased he intended to kill him. Had they reached that point the jury may well not have been able to be satisfied beyond reasonable doubt the applicant did have an intent to kill at the time. That would have resulted in an acquittal on the charge of wilful murder. In this context, it is not enough for the prosecution to say simply that the information was in the public domain, or that the applicant should have made inquires which would have revealed it. The defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility and that if there was any material showing otherwise, the State would disclose it. The failure of the State to do so deprived the applicant of the opportunity to cross-examine [Dr ZS] on an issue which bore directly on his credibility, in circumstances in which the jury’s assessment of that may have led to a 285 different verdict. There was accordingly a miscarriage of justice. …
284 (2005) 155 A Crim R 528 (‘Cooley’). 285 Ibid 543 [66]–[67]. 286 For example, AJ v The Queen (2011) 32 VR 614, 620 [22] (Weinberg and Bongiorno JJA); R v Keogh [No 2] [2015] SASC 180 [63] (Blue J). 287 R v Garofalo [1999] 2 VR 625, 637 [70] (Ormiston JA) (‘Garofalo’). 288 R v K (1991) 161 LSJS 135, 140 (King CJ) (‘K’). 289 Garofalo [1999] 2 VR 625, 634 [63]. Tadgell JA hesitated ‘to conclude that a common law duty always and inevitably rests on the Crown to make a general disclosure of all previous convictions of witnesses for the prosecution’, but otherwise agreed with Ormiston JA (626 [1]). Charles JA agreed with Ormiston JA (642 [89]). Consequently, at least for present purposes, the rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility. It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further. Again for present purposes that level of enquiry must be seen as having been necessary, so that, without examining that issue further, the ignorance of both counsel and instructing solicitor was irrelevant in the present 290 case.
There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware: R v Paraskava (1983) 76 Cr App R 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness. I would feel some doubt whether information as vague and tenuous as that which was in the possession of the investigating officers in this case, would have given rise to the obligation even if it had been communicated to the law officers conducting the prosecution. The mere presence of the truck is but a tenuous link to the crop. Beyond that there was nothing more than the suspicion of a police officer. The events had occurred some eight years before. It is difficult to see how any cross-examination based upon the information would be likely to elicit answers materially affecting the credibility of [the witness]. The fact is, moreover, that the information was not in the possession of the law officers conducting the prosecution. In many cases that would not be an answer. The prosecuting law officers might be expected to make reasonable enquiry of those instructing them as to matters potentially affecting the credibility of witnesses for the prosecution. There are limits, however, to the enquiries which prosecuting officers can be expected to make: R v Collister and Warhurst (1955) 39 Cr App R 100. There seems to be nothing in the present case which ought to have alerted prosecuting officers to the need to make enquiries which would have elicited this information. It is regrettable that the investigating officers did not communicate the information to those conducting the prosecution but it was so vague and
290 Ibid 637 [70] (emphasis added). tenuous that their omission to do so is understandable. I do not think that the Crown Law officers are to be criticised, in the circumstances of this case, for failure to make the sort of 291 enquiries which would have elicited the information. 292
If the conviction was disclosed, that was sufficient so far as the police were concerned. The police are not to be expected to examine the records or see whether possibly there exists anywhere in the country any matter which might affect the character of a witness. It is their duty to disclose to the defence, in the way indicated in this court a little while ago (see ante, p. 20), actual convictions of crime standing or, the record of the prosecutor, and we accept it from [counsel for the Crown] that that course was followed in this case. Unless this other matter appearing on the record of Jeffries’ public examination in bankruptcy was such as to destroy the case which Jeffries was asserting against the two appellants, it cannot be said that the fact that it was not used necessarily led to a 293 miscarriage of justice. …
291 K (1991) 161 LSJS 135, 140–1 (emphasis added). 292 (1955) 39 Cr App R 100 (‘Collister’). 293 Ibid 104–5 (emphasis added). 294 The Practice Direction was in the following terms (emphasis added): The Judges of the Queen’s Bench Division have considered the question as to the information and history of accused and convicted persons that should be given to the court, counsel and solicitors by police officers before and after conviction. They have resolved as follows:— (1) Details of previous convictions must always be supplied by the police to the defending solicitor, or if no solicitor is instructed to defending counsel, on request. The Judges are of opinion that there is no obligation on a police officer to satisfy himself that the prisoner has authorised a statement of previous convictions to be given, as it is clearly within the ordinary authority of solicitor and counsel to obtain this information. In order that the defence may be properly conducted, the prisoner's advisers must know whether they can safely put the prisoner's character in issue. (2) There is no need for police officers to supply a list of previous convictions to the court before conviction, because the prisoner's previous convictions are always set out in the confidential calendar with which the Judge is supplied by the governor of the gaol, whose duty it is to supply it. The police will, of course, give any information to the governor that he may require to enable him to perform his duty. (3) A proof of evidence should be prepared by a police officer containing a factual statement of the previous convictions, date of birth if known, education and employment, the date of arrest, whether the prisoner has been on bail and, if previously convicted, the date of his last discharge from prison, if known. It may also contain a short and concise statement as to the prisoner's domestic and family circumstances, his general reputation and associates, and, if it is to be said that he associates with bad characters, the officer giving evidence must be able to speak of this from his own knowledge. This proof may be given either with his brief or at the outset of the case to counsel for the prosecution and to no-one else, as, unless the accused is convicted, it has no relevance. It need not be prepared in two parts. If the accused is convicted, it is to be given to the court and to counsel for the defence, but it will be for counsel for the prosecution in the first place to decide how much of this he asks the officer to prove, while it will, of course, be open to the presiding judge to put any questions he may think fit. The statement should not be handed to the court or to defending counsel until the officer is sworn. It may, by leave of the court, be given to the shorthand writer, who may use it to check his note, but he must only transcribe so much as is given in evidence. Insofar as King CJ relied upon Collister as supporting the proposition that there are limits ‘to the enquiries which prosecuting officers can be expected to make’, it will be seen that the court in Collister drew on an existing Practice Direction which was concerned solely with the duty of police to produce prior convictions of accused and convicted persons — not witnesses — upon request. Collister has long since been overtaken by more modern approaches to disclosure. 295
The primary determinant of the extent of the prosecution duty to disclose will be the circumstances known, actually or constructively, by the Office of the Director. A breach of the duty will not easily be justified or excused by a failure on the part of the accused or his or her counsel to request material which should have been disclosed. The standard of legal representation affordable by accused persons will vary and it cannot be the case that the standards of justice will vary accordingly. In this case, the same material which it is claimed should have put the defence on notice should also have put the Director’s Office on notice. More fundamentally, the Director cannot, as a general proposition rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting 296 authority.
295 (2016) 125 SASR 319. 296 Ibid 331 [62]–[63]. To adopt the words of King CJ, the obligation to investigate only arises ‘if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness’.
In the passage from Cooley cited above, the Western Australian Court of Appeal expressed the view that the defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility. So much cannot be gainsaid. But in our view, when it seeks to rely on an expert witness, the prosecution too is entitled to assume that the witness is one of integrity and reliability, unless otherwise apprised of material which might reasonably bear on the reliability 297 and credibility of the witness.
In the present case, the applicant submitted that it is no trivial matter for ‘a government investigative agency, which holds itself out as having forensic expertise, to withhold information which casts doubt on the reliability and veracity of its expert in a criminal investigation into murder’. As a statement of general principle, one could hardly quibble with it. Indeed, it might be observed that Victoria Police is worthy of censure for not revealing to the AFP information in its possession which bore on Barnes’ credibility and reliability. It is another thing entirely to visit that non-disclosure — and its suggested consequences — on the AFP (and thence the prosecution more widely).
The applicant has failed to provide a sound or convincing reason as to why Barnes — as a purported expert in the field of ballistics — ought not be treated as any other consultant that might be engaged by the prosecution. In our opinion, the fact that he was in the employ of Victoria Police does not alter the position. Barnes, so the available material establishes, was brought in as a consultant by the AFP. Without more, the AFP was entitled to rely upon him as being credible and reliable. None of the AFP members who dealt with Barnes had any idea of his alleged shortcomings, or as to the doubts that were harboured concerning his credibility and reliability. And, certainly, nobody in the prosecution team more widely was aware of material in the possession of Victoria Police bearing on Barnes’ credit.
Even were we persuaded, however, that any want of disclosure by Victoria Police of information relevant to Barnes’ credit might be visited upon ‘the prosecution’, we would not conclude that a permanent stay was warranted as a result. As we have said, Barnes will not be called on the retrial to give evidence relating to GSR. Principally, a permanent stay will be granted where a court concludes that there is 298 nothing a trial judge can do to prevent an unfair trial of an accused person. In circumstances where Barnes’ evidence will effectively be culled from the prosecution
297 That is particularly so now. Rule 4000 of the Court Procedures Rules 2006 (ACT) picks up div 2.12.1 of the Rules, which, by r 1203, binds an expert witness to the code of conduct set out in sch 1. Clause 1.2 of sch 1 provides: 1.2 General duty to court (1) An expert witness has a paramount duty to assist the court impartially on matters relevant to the expert's area of expertise. (2) This paramount duty to the court, overrides any duty to a party to the proceeding or other person retaining the expert. (3) An expert witness is not an advocate for a party. See also Court Procedures Act 2004 (ACT) div 8.3. 298 Jago (1989) 168 CLR 23, 34 (Mason CJ), 77–8 (Gaudron J). case, it can hardly be said that any non-disclosure relevant to his credit now has the potential to result in an unfair trial.
Moreover, even accepting for the sake of argument that a stay might be granted ‘where it offends the court's sense of justice and propriety to be asked to try the 299 accused in the particular circumstances of the case’ — in the sense that ‘the continuation of the proceedings would compromise the moral integrity of the criminal 300 justice system to an unacceptable degree’ — such a determination ‘involves performing a “balancing” test that takes into account such factors as the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is 301 charged’.
In the present case, the applicant is charged with a very bad example of a very serious offence. Any non-disclosure of information relevant to Barnes’ credibility and reliability by those concerned directly with the prosecution — AFP and DPP — was 302 ‘inadvertent’, in the sense that — Victoria Police apart — nobody in the prosecution (including the AFP) deliberately engaged in a breach of duty by intentionally withholding from the defence information which any relevant person knew should be 303 disclosed. In those circumstances, this Court’s sense of justice and propriety is not outraged. More to the point, perhaps, there was nothing to compel Ashley AJ to conclude that the retrial of the applicant would unacceptably compromise the moral integrity of the criminal justice system.
Before leaving this ground, we should observe that although ground 7(c) — that Ashley AJ erred by ‘misinforming himself of the nature of Mr Barnes’ conduct at the SFSL and the circumstances of his departure from employment with Victoria Police’ — was not abandoned, it was not the subject of oral argument. In written submissions, the applicant had contended that Ashley AJ had misunderstood the importance of internal disciplinary charges laid against Barnes and the circumstances 304 of their withdrawal. It is enough to say in answer to these contentions that, even were they made out, they could not have materially influenced the decision to refuse the stay.
Ground 7 cannot be upheld and leave to appeal upon it should be refused.
Conclusion
299 R v Maxwell [2011] 1 WLR 1837, 1841 [13] (Dyson JSC); Warren v Attorney General for Jersey [2012] 1 AC 22, 31 [23] (Lord Dyson JSC) (‘Warren’). See also R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 74 (Lord Lowry); R v Latif [1996] 1 WLR 104, 112–13 (Lord Steyn). 300 Warren [2012] 1 AC 22, 32 [24]. 301 Ibid (citing Andrew L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings, nd Oxford University Press, 2 ed 2008), 132) (emphasis added.). 302 Stay Reasons [132], [136], [469], [779]; Martin Report [1120], [1761], [1820]; Eastman v DPP [No 2] (2014) 9 ACTLR 178, 217 [114], 262–3 [291]. 303 Martin Report [1761]; Eastman v DPP [No 2] (2014) 9 ACTLR 178, 217 [114], 262–3 [291]. 304 See Stay Reasons [325](4) and (10), [326], [334] and [468]. ---
I certify that the preceding 352 numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal (Osborn, Whelan and Priest AJJ).
Associate:
Date:
Eastman
Director of Public Prosecutions
(2014) 9 ACTLR 178
(2000) 205 CLR 337
(1997) 76 FCR 9
(2000) 203 CLR 1
(1992) 173 CLR 592
(1980) 147 CLR 75
(2009) 255 ALR 399
(2009) 83 ALJR 717
(1993) 177 CLR 378
(2010) 241 CLR 237
(1989) 168 CLR 23
(2007) 73 NSWLR 308
(2010) 28 VR 588
(1995) 184 CLR 19
(2011) 245 CLR 456
(2014) 41 VR 572
(2000) 201 CLR 414
(1989) 167 CLR 94
(1976) 180 CLR 213
(2003) 195 ALR 225
(2003) 78 ALJR 177
(1973) 48 ALJR 11
(2004) 79 ALJR 116
(2002) 213 CLR 635
(1936) 55 CLR 499
(1953) 94 CLR 621
(1950) 81 CLR 513
(2011) 82 NSWLR 123
(2015) 44 VR 335
(2011) 242 CLR 283
(2000) 201 CLR 488
(2011) 34 VR 236
(2011) 244 CLR 427
(1989) 167 CLR 568
(1997) 6 NTLR 136
(2010) 272 ALR 705
(2000) 96 FCR 125
(1997) 81 FCR 71
(1998) 84 FCR 87
(1990) 19 NSWLR 263
(2014) 292 FLR 57
(1984) 154 CLR 627
(2006) 14 VR 512
(2002) 210 CLR 285
(2000) 201 CLR 603
(1985) 3 NSWLR 230
(1978) 142 CLR 1
(1984) 154 CLR 404
(2000) 77 SASR 105
(2001) 87 SASR 448
(2009) 89 SASR 534
(2006) 65 NSWLR 573
(1995) 1 VR 84
(1998) 72 ALJR 1316
(1989) 15 NSWLR 720
(2016) 125 SASR 319
(2001) 184 ALR 593
(1987) 18 FCR 304
(1986) 15 FCR 513
(1992) 174 CLR 509
(1996) 184 CLR 501
(1998) 44 NSWLR 129
(2011) 32 VR 400
(2008) 21 VR 203
(1983) 33 SASR 211
(2013) 40 VR 625
(2015) 45 VR 816
(2011) 31 VR 305
(2009) 26 VR 618
(2005) 224 CLR 125
(2004) 60 NSWLR 454
(2004) 61 NSWLR 369
(2009) 26 VR 410
(2012) 37 VR 257
(2011) 32 VR 614
Insofar as the applicant relied upon comments by the judge during hearings or in rulings made before the delivery of judgment on the stay application, the respondent submitted that the applicant’s failure to object meant that he had waived his right to rely upon any such ground of appeal.
In relation to Stay Reasons complaint (c), it is asserted that the judge in ‘effect’ suggested the applicant’s conduct of the stay application had been unnecessarily exhaustive and broad and that the applicant had sought to combine insignificant matters, some of which were without merit, into a potentially misleading whole. Paragraph [47] of the Stay Reasons is relied upon in which the judge said that the matters relied upon by the applicant had been ‘exhaustively explored’ and in which he recorded the fact that he had not lost sight of the single question requiring determination, being whether the applicant had satisfied him, in the totality of the circumstances, that he should have the relief he seeks. The judge observed that that had been a somewhat difficult task because of a tendency to fasten upon ‘a pinch of this’ and ‘the skerrick of that’ and so build up a picture which might well mislead if one were to ignore the totality of the matter. He also cautioned against what he described as a tendency to think that the sheer number of matters raised by the applicant meant that there was something in the stay application.
In relation to Stay Reasons complaint (d), it is asserted that the judge had made comments to the ‘effect’ that appeals launched by the applicant and subsequently 69 70 abandoned in R v Eastman [No 5] and R v Eastman [No 6] had been designed to delay and distract from the issues and were unmeritorious or vexatious. In the passages relied upon the judge criticised both parties for ‘loss of perspective’ (the same passage is relied upon in relation to Stay Reasons complaint (b)) and made observations in relation to his determination that a timetable for the application should be set by the court and not be ‘dictated’ by one or other of the parties, noting in a footnote that the applicant’s appeals had meant that what he intended had not been entirely achieved.
In relation to Stay Reasons complaint (e), it is asserted that the judge made comments to the ‘effect’ that the applicant raising matters mentioned in prior proceedings, or matters otherwise known for some time, had been vexatious or unmeritorious. The judge did not say that that had been vexatious. He did say that some of the matters raised were unmeritorious. In relation to this assertion the applicant relied upon passages also relied upon in relation to Stay Reasons complaints (b) and (c) together with the judge’s assessment of certain cross-examination, and upon an observation that a considerable number of the matters raised by the applicant in the context of analysis of the alternative hypothesis had been repeatedly raised previously, the judge making the observation that the fact that they were repeated did not ‘make them any better than they once were’. Reliance was also again placed upon what the judge said about the submission concerning the evidence of Dr Roantree.
In relation to Stay Reasons complaint (f), it is asserted that the judge made comments to the ‘effect’ that the alternative hypothesis relied upon was speculative, fanciful and ought to be dismissed. The passages relied upon are part of a very detailed analysis which the judge undertook of the alternative hypothesis. The judge eventually determined that as matters stood before him he considered that the alternative
Critically, the Martin Inquiry determined that there had been a miscarriage of justice at the applicant’s trial, largely as a result of Barnes’ flawed evidence, which was 228 described as being ‘undoubtedly of crucial importance to the prosecution case’. Martin AJ concluded that a number of matters ‘undermine heavily’ the opinions that 229 Barnes expressed at trial. He found that ‘[c]ompetent 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’ that 230 Barnes expressed. Martin AJ commented: