Eastman v R [2015] ACTCA 24

Eastman v R [2015] ACTCA 24 - ACTCA 2015 case summary — Zoe

[47]

A substantial miscarriage of justice occurred in the applicant's trial.
The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal.
The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material.
As a consequence of the substantial miscarriage of justice, the applicant has been in custody for almost 19 years.
The miscarriage of justice was such that in ordinary circumstances a court of criminal appeal hearing an appeal against conviction soon after the conviction would allow the appeal and order a retrial.
A retrial is not feasible and would not be fair.
While I am fairly certain the applicant is guilty of the murder of the deceased, a nagging doubt remains. The case against the applicant based on the admissible and properly tested evidence is not overwhelming; it is properly described as a strong circumstantial case. There is also material pointing to an alternative hypothesis consistent with innocence, the strength of which is unknown.
Regardless of my view of the case and the applicant's guilt, the substantial miscarriage of justice suffered by the applicant should not be allowed to stand uncorrected.
To allow such a miscarriage of justice to stand uncorrected would be contrary to the fundamental principles that guide the administration of justice in Australia and would bring the administration of justice into disrepute. Allowing such a miscarriage of justice to stand uncorrected would severely undermine public confidence in the administration of justice.
In view of the nature of the miscarriage of justice that has occurred and the period the applicant has spent in custody, and in view of the powers conferred on the Full Court, I do not recommend that the Court confirm the conviction and recommend that the Executive grant a pardon.
I recommend that the applicant's conviction on 3 November 1995 for the murder of Colin Stanley Winchester be quashed.

[57]

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Footnotes omitted.)

[80]

The flawed forensic evidence at the trial that Martin AJ referred to in his conclusion at [1831]-[1838] set out in [11] above consisted mainly of evidence given by Mr Barnes, whom the prosecution had called as an expert witness. His Honour analysed Mr Barnes' evidence given at trial in great detail in the report. He found that Mr Barnes' evidence was "crucial in the trial" to the prosecution case and that it had extensive flaws ([1102], [1109]). The prosecution relied on his evidence to establish, scientifically, that there was a definite connection between supposedly unique gunshot residues from the PMC brand ammunition used to kill Mr Winchester found at the murder scene and gunshot residues in the boot of Mr Eastman's car. Gunshot residue remains on, and can be deposited by, the weapon from which ammunition is fired and the shooter.
In essence, Mr Barnes identified the gunshot residue found in the boot of Mr Eastman's car as being indistinguishable from that found at the crime scene on Mr Winchester's body, in his car and its vicinity ([316]).
Mr Barnes asserted that, when PMC ammunition was fired, gunshot residue associated with its discharge was unique among residues of all of the approximately 150 other .22 ammunition types. He claimed that he had created, scientifically, a database of all known gunshot residues from .22 ammunition available in Australia in 1989. In fact, much of that work had been done by Norbet Strobel, a student who was using the work to prepare his master's degree thesis ([483]-[484]).
Mr Barnes' evidence was that, based on his expertise, his collection and examination of evidence collected from the murder scene and Mr Eastman's car, his ammunition database and testing of some of the collected evidence, the gunshot residue found on the deceased, in his car and its vicinity was from PMC ammunition and it could be distinguished from every other possible .22 ammunition's gunshot residue. Mr Barnes gave evidence that he had also found the unique PMC gunshot residue in material that had been collected by vacuuming Mr Eastman's car shortly after the murder, from first, inside the boot and, secondly, in lesser quantities, the driver's seat and its surrounds.
Martin AJ correctly found that Mr Barnes' evidence was critical in connecting Mr Eastman's car to the scene of the murder ([1114]). His was very powerful, apparently scientific, evidence that the prosecution had put before the jury as probative that there was only one explanation for why the unique PMC gunshot residue, that was indistinguishable from the gunshot residues at the murder scene, was inside the boot of Mr Eastman's car and, to a lesser extent, its driver's area.
The significance of Mr Barnes' evidence, and that of other experts related to it, given at the trial cannot be gainsaid. In his sentencing remarks, Carruthers AJ said:

[88]

We would add that these features of Mr Barnes' evidence on which the prosecution relied also impressed the trial judge and the Full Court in the appeal against conviction as the emphasised passages from their reasons above show.
Next, Martin AJ noted the well-known and persuasive power of scientific evidence in jury trials and the need for juries to be given careful directions to ensure that they give proper weight to that evidence. He said that there was no suggestion that Carruthers AJ's directions on this aspect were inadequate, but emphasised that the importance of that evidence to the jury was clear. The trial judge had directed the jury that the evidence of Mr Barnes concerning gunshot residue and his methodology had not been criticised and was supported by overseas experts ([1110]). Martin AJ said that the judge's sentencing remarks in praise of the quality of the investigation highlighted at [96] above was the best indication as to how the jury was likely to have viewed Mr Barnes' evidence concerning gunshot residue ([1111]).
Martin AJ found that the inadequacies in the forensic evidence uncovered at the inquiry had not been apparent at the trial and that the trial judge had had no reason to doubt its reliability ([1112]).
Importantly, the board found that, unknown to the defence, Mr Barnes:
- gave evidence to the inquest that lacked a proper scientific basis ([1113]);
- "gave critical evidence connecting the applicant's car to the scene of the murder, [and] was far from independent and objective. He regarded himself as a police witness and was biased accordingly" ([1114] emphasis added);
- regularly failed to comply with accepted forensic practice with respect to his case files;
- frequently failed to have his work peer reviewed;
- had disciplinary charges laid against him because of his failures to comply with proper practices (of which the Director was also unaware) ([1115]);
- had had concerns expressed about him and aspects of his work by overseas experts, including the database, and his explanations for perceived anomalies had been not accepted as satisfactory ([1116]);
- himself recognised that there were deficiencies in the database, and that, also unknown to the Director, it had been created by Mr Strobel for his thesis; and
- had begun work on a second database ([1119]).
The following are examples of the many serious problems with Mr Barnes' work that the report discerned with great clarity and thoroughness in nearly 200 pages.
Martin AJ found that the evidence was "overwhelming that Mr Barnes lacked independence and was biased in favour of the prosecution". Had that been disclosed and presented to the jury, Martin AJ found it would have been devastating to Mr Barnes' credibility. Moreover, as he also found, had the evidence of bias been linked to the facts underlying the disciplinary charges and substantive inadequacies in Mr Barnes' case files, "the entire complexion of the [prosecution's] forensic case would have changed dramatically" ([1117]).
Martin AJ found that the way in which the prosecution led expert evidence at the trial minimised the chances of the overseas experts straying into criticisms of Mr Barnes or expressing the concerns that they had about his evidence and expertise. He also found that Mr Barnes gave his evidence in a way that was designed to convey the impression that he was a careful and conservative expert who had used methods that were well accepted in the scientific community and said ([578]):

[92]

This information was not disclosed to the defence. Other experts, such as the Israeli Professor, Shmuel Zitrin, had told the prosecution in April and May 1994 that he had detected unusual results in some cases from the database, although most seemed to be reliable ([514]). By early December 1994, Prof Zitrin said that, even if Mr Barnes had a satisfactory explanation for the unusual results, that would not resolve his difficulties in relation to Mr Barnes' conclusions. Prof Zitrin said that his opinion did not accord with Mr Barnes' strong opinion ([536]-[543]).
The professor identified to the prosecutors matters that, he said, undermined the database. He and another Israeli expert, Dr Arie Zeichner, told the prosecution at that time that they had a difficulty with the fact that Mr Barnes was "doing something that is not accepted". Then on 16 February 1995, Prof Zitrin told the prosecution that if reliance could not be placed on the manufacturer's specifications as to the propellants' composition, that fact "must undermine Mr Barnes' ultimate conclusions" and that one cannot rely upon any given composition of propellant powder. He also expressed his view that some of the anomalies in the database could have been due to contamination from earlier firings of the testing rifle ([535], [550]-[554]). None of this information was disclosed.
Martin AJ found that Prof Zitrin was the only expert qualified to deal with the database. He gave evidence at the trial when Mr Eastman was unrepresented and, although his disclosed report referred to "unusual results", it did not refer to anomalies or problems with the database ([557]).
Any uncertainty as to the chemical composition of propellant in any of the types of ammunition used to compile the database had the obvious consequence that, even if the database was prepared using ammunition with the chemical composition available at the time of the murder (and there was no suggestion that it was), if the murder weapon had fired ammunition that had been purchased at an earlier time or times with different chemical compositions for the propellants, the results in the database would not correctly identify the brand used in the murder. There was a lack of any scientific verification or authentication for the database's assumption that the gunshot residues it attributed to a particular brand at the time Mr Strobel tested ammunition from that brand was in any way reliable as evidence of the composition of gunshot residues from any brand of ammunition that might have been fired through the Klarenbeek weapon before or at the murder so as to leave the residues that were found at the murder scene or in Mr Eastman's car.
Likewise, the mere fact that some of the residues might match could not be conclusive on the question whether they had emanated from the same ammunition or weapon. It followed that PMC gunshot residue from any particular time of manufacture may not have had unique characteristics distinguishing it from other brands and there was no certainty about whether or not other ammunition types could have produced similar gunshot residues. This is the more important because the residues that were found at the scene and in Mr Eastman's car were not all of a kind.
Martin AJ found that the Director had inadvertently failed to disclose to the defence significant information and material that directly and indirectly would have assisted the defence concerning "material relevant to the forensic evidence at the heart of the prosecution case" ([1120]). He found that the independent overseas experts had not fully reviewed Mr Barnes' work ([1823]) and, unknown to the defence, they had experienced concerns both about him and aspects of his work, including the database, his emotional involvement, his role as an "expert" in too many areas, and their difficulties in cross-referencing his reports with data.
His Honour also found that conflicts within forensic records and between records and reports had permeated the entire forensic investigation. The board found that, making due allowance for the lapse of time, Mr Barnes' explanations to the inquiry for those matters ranged from unsatisfactory to unacceptable ([1121]). Martin AJ then found ([1122]-[1124]):

[94]

Additionally, Martin AJ found that, when Mr Barnes gave evidence to the inquiry, it became apparent that he had assumed that the Mazda was associated with the crime scene as a basis for his opinion that a silencer was used there ([1069]). His Honour analysed the evidence concerning charred and partially burnt propellant (PBP) particles on which Mr Barnes claimed to have relied up to and at the trial. His Honour found significant examples of omissions, inconsistencies and imprecision. At the trial, Mr Barnes had said that, regardless of the type of ammunition fired from a Ruger 10/22 fitted with a silencer, there was a strong likelihood that contaminated, charred, partially burnt propellant from earlier firing(s) would be expelled from the silencer with the next shot. He claimed that he had never experienced this phenomenon except where a silencer was used ([1059]-[1060]).
Mr Barnes said in his evidence to the inquiry that there were only two severely charred particles found at the scene, one in Mr Winchester's hair and the other in his car, that suggested to him that the discharging rifle had been very heavily contaminated. He said that "I couldn't say on that basis that a silencer was used". He then tried to justify to Martin AJ his definite evidence at the trial that [a] silencer was used to fire the fatal two shots by referring to the lack of stippling on Mr Winchester. However, as Martin AJ found, Mr Barnes had made no reference to stippling at the trial in the context of the use of the silencer ([1069]-[1071]).
His Honour found that there was no evidence at the trial to suggest that a silencer had been attached to the Klarenbeek rifle when its prior owners had used it to fire three brands of ammunition other than PMC. Mr Barnes had assumed that the presence of "rogue" charred particles was explained by the use of a silencer on the Klarenbeek weapon. Martin AJ said that even if a silencer had been used by the prior owners to fire rounds of any of the three particular brands other than PMC, there was no evidence to suggest that the offender had the same silencer as the prior owners so as to cause the "rogue" (i.e. non PMC) particles to be dislodged from the silencer and left at the scene and in Mr Eastman's Mazda ([1070]-[1074]).
Importantly, his Honour found that, accepting that PMC was the ammunition used, at best, the reliable evidence established that the green flattened ball gunshot propellant particles found in the Mazda boot, and one on the front seat, were consistent with PMC and at least 56 other ammunition types, including ammunition that had been sold on 10 February 1988 to Mr Eastman by Mr Bradshaw with the rifle Mr Eastman purchased from him under a false identity. Martin AJ also concluded that the partially burnt propellant particles in the boot were consistent with ammunition that was found with the rifle that Mr Eastman had purchased from Mr Lenaghan three days later that was subsequently found on 1 May 1988 in a culvert on the old Federal Highway ([1125], [1743], [1793]).
Moreover, the tests performed by Mr Ross (whose work the board did not criticise) on primer residues found on the front seat of the Mazda, while identifying the one PBP particle consistent with, but not unique to, PMC ammunition also identified other PBP particles that were inconsistent with PMC ([1126]). However, Mr Ross' discovery of those PBP particles that were on the Mazda's driver's seat and inconsistent with PMC ammunition was not disclosed to the defence.
Martin AJ found that Mr Barnes' statement to the jury that there was no evidence of any component inconsistent with PMC on the Mazda's driver's seat was misleading ([1010]). This led his Honour to conclude that ([1127], [1128]):

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