Supreme Court of the ACT|2015-04-24|Before: Whealy AJ

R v Eastman (No 2) [2015] ACTSC 98 (24 April 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

PROCEDURE - Courts and judges generally - judges - disqualification for interest or bias - recusal application - whether previous professional relationship with a witness leads to reasonable apprehension of bias

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215

CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 282 ALR 685

NRMA Ltd & Ors (1999) 31 ASCR 435

Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) NSWLR 272.

Mr C. Boyce S.C. with Ms L. Line (Applicant/Accused)

ACT Director of Public Prosecutions (Respondent/Crown)

1. This is a recusal application brought on behalf of David Harold Eastman. The background to the application may be briefly stated.

2. Mr Eastman was convicted in 1995 of the murder of Colin Winchester. He was sentenced to life imprisonment for the crime. On 3 September 2012, a judge of the ACT Supreme Court made an order under s 424(1) of the Crimes Act 1900 (ACT) that an inquiry be held into the conviction.

3. On 29 May 2014, Martin AJ provided a report to the Registrar of the Court. His Honour recommended that the Full Court make an order under s 430(2)(c) of the Crimes Act that the conviction be quashed. Martin AJ found that a substantial miscarriage of justice had occurred in Mr Eastman's trial. At paragraph 1832 of his report, His Honour said:

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. In addition, evidence of inadequacies and flaws in the case file and case work of the key forensic scientists were unknown to everyone involved in the investigation and trial.

4. On 22 August 2014, a Full Court (Rares and Wigney JJ, Cowdroy AJ) ordered that the conviction of Mr Eastman for the Winchester murder be quashed and ordered a new trial on the murder charge. Mr Eastman was granted bail and has been on conditional liberty since.

5. In January 2015, I was appointed an Acting Judge of the ACT Supreme Court and asked to undertake the hearing of a stay application by Mr Eastman and, if it became necessary, to be the trial judge in relation to the murder charge. The stay application is presently listed for hearing for two weeks commencing on 13 July 2015.

6. On 7 April 2015, the solicitor for the ACT Legal Aid Commission wrote to the Court informing it that a recusal application would be made, seeking that I recuse myself in relation to both the stay application and the trial. On 7 April, a letter was sent to the Registrar outlining the two bases on which the application for recusal would be made. First, the relationship between myself and the Honourable Mr Justice Adams arising out of the fact that at one time we were both members of the NSW Supreme Court was relied upon as a basis for recusal. Secondly, it was argued that, because a recommendation had been made by Chief Justice Murrell for my appointment and, as she had recused herself from sitting on matters of substance in the Eastman case, it was not appropriate that I hear the stay application or trial.

7. This second basis has now been abandoned and there is now only one ground for recusal pressed. The hearing of the recusal application took place on Friday 17 April 2015 when, after hearing submissions, I reserved my decision. Mr Boyce SC with Ms Lucy Line represented Mr Eastman and Mr Thangaraj SC represented the ACT Director of Public Prosecutions. As a preliminary, I propose throughout this judgment to refer to the Honourable Justice Michael Adams as Mr Adams. For reasons of convenience, he was so referred to during the Martin Report. No discourtesy or disrespect is meant to Justice Adams by the use of this nomenclature.

8. The fundamental proposition on which the recusal application is made, is that in the hearing of the stay application, I will be required as part of my determination to consider whether, as prosecutor in the original trial, Mr Adams failed in his ethical and professional duties in certain respects. Those respects include whether Mr Adams' behaviour fell below acceptable standards in relation to both the prosecution's duty of disclosure and in relation to his presentation of the prosecution case to the jury.

9. A subset of this fundamental proposition is the further argument that it may become necessary to form an opinion concerning the veracity and reliability of evidence given by Mr Adams to the Martin Inquiry. It is possible, although rather unlikely, that Mr Adams will give evidence at the hearing of the stay application.

10. This is not the occasion to consider in detail the Martin Report. Although Mr Boyce has suggested that in hearing the stay application, I am not bound to follow Martin AJ's findings, I have a tentative view that it would be inappropriate to ignore those findings altogether. Indeed, I imagine Mr Boyce will suggest I pay considerable regard, and give considerable respect to, some of the Martin Report findings. This is especially so in relation to those findings concerning the forensic expert Mr Barnes and the failings of his evidence.

11. In relation to Mr Adams, the Martin Report stated in its concluding section at [1761]:

This issue is discussed at length with respect to Paragraph 5 of the Order. That discussion identifies the nature and extent of the information concerning Mr Barnes that was not disclosed by the AFP and/or the DPP in breach of the duty of disclosure. I emphasise my finding that no-one in the AFP or the prosecution deliberately engaged in a breach of duty by intentionally withholding from the defence information which the person knew should be disclosed. Mr Adams accepted that ultimate responsibility lay with him, but given the enormous amount of material with which he was grappling, necessarily Mr Adams relied on others to raise the issue of disclosure with him. Mr Adams and others in the prosecution team adhered to the highest standards of ethical conduct. The failures to disclose were inadvertent and occurred as a result of a combination of circumstances.

12. Indeed, the Full Court in its decision to which I have made reference observed at [291]:

...However, we have not intended to question, and our reasons should not be read as in any way qualifying, what Martin AJ said in relation to the failures of the AFP and the prosecution to disclose matters relating to Mr Barnes and the issues raised in paragraph 5 of the s 424 order at [1761]. In particular, nothing we have said should be understood as criticising the professional integrity or propriety of the lawyers acting for the prosecution, including Michael Adams QC, who acted as senior counsel for the Director. We accept the finding of Martin AJ at [1761]...

13. Beyond noting these matters there is no need for me at this stage to analyse Martin AJ's impressive and comprehensive report. Nor is there any need for me to analyse the reasons of the Full Court for the purposes of the recusal application.

14. Although the matter has not been fully argued I will, contrary to the tentative view I have just mentioned, assume that for the purposes of the stay application I shall be free to disagree with any aspect of the Martin Report if I am satisfied I should. Whether this is an appropriate course to take will ultimately be a matter for further submissions at the hearing of the stay application. I shall also make the assumption that, although it is unlikely, Mr Adams will give evidence in the stay application.

15. The applicant argues that I should recuse myself for three reasons. First, any finding that Mr Adams' conduct as prosecutor fell below acceptable ethical standards might result in a fair-minded lay observer thinking that such a finding would reflect adversely upon the integrity of the NSW Supreme Court. Accordingly, such a person might consider that, as a former member of the Supreme Court, I might in examining Mr Adams' conduct err on the side of protecting the integrity of that Court if it were possible to do so.

16. Secondly, a fair-minded lay observer might conclude, in view of my personal association with Mr Adams when I was a member of the Supreme Court, that I might unconsciously err on the side of protecting Mr Adams' integrity if it were at all possible to do so.

17. Thirdly, if Mr Adams were to give evidence in the stay application, a fair-minded lay observer might conclude that, in view of my previous working relationship with Mr Adams, I might be more likely to view him as a person of integrity and hence more likely to accept his evidence as truthful and accurate.

18. In making his submissions, Mr Boyce accepted on his client's behalf that there was no suggestion that I would do other than bring an impartial mind to the resolution of the stay application. The argument he advanced lay entirely in the realm of perception: the orthodox application of the principles of apprehended bias. In his oral submissions, Mr Boyce indicated that he would not seek to recuse me from the trial itself. However, in supplementary submissions, Counsel argued that this should be left an open question to be determined in the event that a trial takes place.

19. Mr Thangaraj responded to these submissions by arguing that, in the present circumstances, which he analysed fully and carefully, the objective test required by the law should be answered in the negative. Counsel argued that there was no real possibility that a fair-minded lay observer would reasonably conclude that I would do other than bring an impartial mind to each aspect of the stay application, including the position of Mr Adams.

20. Mr Thangaraj, while accepting that I was not bound by the findings of the Martin Report, suggested that unless persuaded otherwise, I should not lightly move away from those findings. Counsel did not anticipate that the DPP would call Mr Adams to give evidence at the stay application. Mr Thangaraj also submitted that the two areas of 'misconduct' identified by the applicant would not suffice, of themselves, to warrant a stay in the circumstances of the present case. These matters, he submitted, were each addressed by the Martin Report following submissions on each topic by counsel then appearing for Mr Eastman.

21. (Whether Mr Thangaraj is correct in these latter submissions may best be left for the stay application rather than determined in the present recusal application.)

22. The test as to apprehension of bias is not in issue. The question is whether 'a fair-minded lay observer' might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 282 ALR 685 at [31]. In applying this test, it is necessary first to identify what it is that might lead to that officer not bringing an impartial mind to the relevant question and then to assess the reasonableness of the asserted connection between that matter and the possibility of departure from impartial decision-making.

23. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 12-13 the plurality said:

...The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge, whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial."

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice....

See also CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 at 35-36.

24. In deciding the question of 'reasonable apprehension' it is important that judicial officers discharge their duty to sit and not accede too readily to suggestions of the appearance of bias. The issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) NSWLR 272. In Re JLR; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, Mason J said:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

25. The two steps mentioned in Ebner require first, an examination of the professional relationship between Mr Adams and myself and secondly, an examination of the relevant circumstances which point to or depart from the reasonableness of the assertion of apprehension of bias. In a case such as the present, there is a degree of overlap between the circumstances surrounding these two essential steps.

26. As to the first, it is true that Mr Adams and I served on the NSW Supreme Court bench for a number of years. However, it is fair to note that the NSW Supreme Court is a large institution with approximately 48 judges at any one time. There are nine Judges of Appeal (Court of Appeal) and two principle divisions, Common Law and Equity. In my case, I served as a Common Law judge between 2000 and 2010. From the end of that year until I retired in June 2012, I served as a Judge of Appeal. It is now approximately four and a half years since I served in the Common Law Division and it is nearly three years since I retired as a Judge.

27. As to my working relationship with Mr Adams, the evidence placed before the Court appears in the affidavit of Michael Andrew Toole, an employee of the ACT Legal Aid Commission. The evidence shows that over the 14 year period, on two occasions I presided over a Court of Criminal Appeal of which Mr Adams (and presumably a third judge) was a member. Both of these occasions occurred when I was a Judge of Appeal and after I had left the Common Law Division. No other instances of a working professional relationship have been provided or relied upon.

28. In relation to the second question - and indeed bearing on the first, as I have said - is the fact that three years have passed since my retirement. More significantly is the fact that the enquiry into Mr Adams' propriety has no connection with his work as a Judge of the Supreme Court. It is confined entirely to his role as a Crown Prosecutor in the Eastman trial. It relates to events that occurred in 1992 to 1995, a number of years before his appointment to the NSW Supreme Court.

29. In all these circumstances, I am satisfied that a fair-minded lay observer would have no reasonable apprehension that I would fail to bring an impartial mind to the resolution of the issues identified in the present application.

30. Mr Toole's affidavit at paragraph 14 echos essentially the argument advanced by Mr Boyce in this application:

Due to this longstanding professional association, the recusal application is made on the basis that one past member of a court ought not sit in judgment on the propriety of another such member in circumstances such as exist in this matter.

31. There is no rule of practice or legal authority which dictates a consequence of this breadth. Each case must turn on its own circumstances. In the present matter, the circumstances dictate that the recusal application should be refused.

32. Mr Boyce, in a supplementary submission, drew my attention to a number of cases where sitting judges have recused themselves in relation to proceedings involving a colleague. I have no doubt that such a situation can properly arise. There is no need for me to evaluate each of the examples relied upon by Counsel. I am satisfied that there are significant differences between each of those cases and the present situation.

33. It is significant to note, for example, that in the case of NRMA Ltd & Ors (1999) 31 ASCR 435, the judges who recused themselves were all members of the Court of Appeal, as was Mr Dyson Heydon QC and indeed, by the time of the appeal, so was the trial judge from whom the appeal was brought. In the Western Australian case involving the prosecution of Lloyd Rayney, Mr Rayney and his deceased wife were persons who worked closely with the court in differing categories. In addition, a number of judges there had dealt with preliminary applications or other matters involving Mr Rayney.

34. Finally, I should state that in my opinion the aspect of the application seeking to recuse me from the trial itself need not be dealt with at the present time. If Mr Eastman's stay application succeeds, there will be no trial. Further, at this stage, no basis has been advanced for my recusal at the trial.

35. My order is that the recusal application in relation to the stay be dismissed.

I certify that the preceding 35 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Whealy

R v Eastman

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Judgment (58 paragraphs)

R v Eastman (No 2) [2015] ACTSC 98 (24 April 2015)

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