R v Warwick

Supreme Court of NSW|2018-10-15|Before: Garling J

EX TEMPORE Judgment (T.3636)

On 4 October 2018, it was agreed between the lawyers for the Accused and the Crown that the evidence of Mr Robert Collins Barnes, a Crown witness, would be taken on a voir dire, to enable the expertise of the witness to be subject to challenge by the Accused as to its admissibility, after hearing all of the expert's opinion evidence.
By Notice of Motion filed this morning immediately prior to Mr Barnes being called to give evidence, the Accused seeks an order to the following effect, namely, "The Court not accept the evidence of Mr Robert Barnes as an expert".
In the course of submissions, it was made plain that what was intended to be achieved by such an order was that the Crown not be permitted to call Mr Barnes to give any evidence at all. Such an order which was sought was not grounded in any specific statutory provision but rather was said to fall within the general jurisdiction of the Court to ensure that there should be a fair trial.
In support of the Motion, the Accused relied upon an affidavit of Elizabeth Ramsay sworn 15 October 2018, as well as upon the contents or part of the contents of the report of the Board of Inquiry in the Australian Capital Territory ("the Inquiry") into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester ("the Report"), which was published on 29 May 2014. The Report was tendered by the Accused, admitted as an exhibit in the trial without objection and marked Exh 206.

The Report of the Inquiry

The Accused drew attention to a significant part of that Report in which the evidence given by Mr Barnes of an expert nature in the trial involving Mr Eastman, which was conducted in 1995, was the subject of strong criticism in the conclusions reached by the Inquiry. The Inquiry set out various conclusions about the nature of the evidence given in that trial, and other matters relevant to the credibility of Mr Barnes. The evidence given by Mr Barnes to the Inquiry was also the subject of criticism.
Ultimately, for the reasons expressed at great length, the Inquiry concluded that it had a doubt about the guilt of Mr Eastman because a substantial miscarriage of justice had occurred in his trial, and that he therefore did not receive a fair trial according to law. The Inquiry concluded that the issue of Mr Eastman's guilt was determined on the basis of deeply flawed forensic evidence in circumstances where Mr Eastman was denied procedural fairness by reason of a fundamental breach of the trial process concerning disclosure by the Crown of all relevant material to the Accused.
Although the Inquiry concluded that a retrial of Mr Eastman for the murder of Mr Winchester was neither feasible nor fair, the Court of Appeal of the Supreme Court of the Australian Capital Territory, quashed the conviction of Mr Eastman, and ordered a retrial.
Insofar as criticisms are made in that Report about Mr Barnes' work, and his opinion evidence and other material relevant to his veracity and credibility, the substantial conclusion of the Inquiry which ultimately led to the order for retrial seems to me to be that contained in paragraph 1128 at p.288, which said: "In essence, there was a failure by the AFP and DPP to comply with the duty of disclosure which was coupled with inadequacies and conflicts within the case file of which the defence were unaware."
In the same paragraph, the Inquiry went on to conclude that had a Court of Criminal Appeal been faced with those circumstances, such a court would have found that a miscarriage of justice had occurred.

Submissions by the Accused

It was submitted that such are the criticisms and the "serious censure" of Mr Barnes in that report that this Court would conclude that there was every reason to doubt that Mr Barnes would give evidence which was credible or which was appropriate evidence for an expert to give.
The lawyer for the Accused, Mr Conolly, specifically pointed to findings of the Inquiry related to Mr Barnes' "stubbornness, rudeness and intemperate language" whilst giving evidence to the Inquiry (paragraph 410 at p.134 of the Report). As well, there was mention of disciplinary proceedings in relation to Mr Barnes' alleged solicitation of private work and remuneration during his working hours and with use of government laboratory facilities (at paragraph 469 at p.145).
To that end, Mr Conolly contended that "The findings of this report are so damning that this man should not ever be before the Court as an expert. He should not be listened to. He should not be an expert before the Court."
In effect, what the Accused sought by Motion was an early conclusion, in advance of hearing any evidence from Mr Barnes that, at the end of such evidence, including such attacks as may be made on his conclusions and his credibility, there would be no prospect other than that the Court would reject his evidence in its entirety.
In essence, it was submitted that it would be appropriate to ensure a fair trial of the Accused if the Court were to come to that view now, and act upon it. It was said that this would same time and expense and thereby avoid prejudice to the Accused.
As I have earlier said, no statutory provision was called in aid as a basis for the Court's power to make the order sought. It was said that the Court has an overall power to ensure a fair trial which would constitute a proper basis for the order to be made. No authority was cited to the Court of any instance where a court had been asked to make an order of the kind here sought. Nor was there any principle identified of a kind which would permit the Court to make such an order.
The lawyer for the Accused instead submitted that the basis for his admittedly "very unusual application" was that the Report of the Inquiry was "the most extraordinary report", which could be described as "unprecedented". He further submitted that, in his view, "it would be in the Court's interest" to uphold the application.

Discernment

In my view, the Court does not have the power to order the Crown not to call a witness in a criminal trial or, alternatively put, to make an order which prohibits the Crown calling a witness to give evidence. Accordingly, the Court does not have the power to make the order sought in this Notice of Motion.
The authorities to which I will now turn make it plain that a criminal trial is an adversarial proceeding in which the parties are the Crown and the Accused. It is for the parties to decide the grounds upon which the issues will be contested. The evidence which either of the Crown or the Accused calls and what questions are asked are directed to the proof of all contested issues. The evidence of any witness must be relevant and admissible, in accordance with the Evidence Act 1995. These are matters in which the Court or the presiding Judge has no role to play.
In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at p.517 Barwick CJ said: "It is a trial, not an inquisition: a trial in which the protagonists are the Crown, on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not."
In The Queen v Apostolides [1984] HCA 38; (1984) 154 CLR 563, the High Court of Australia in a unanimous judgment identified the following propositions as being applicable to the conduct of criminal trials in Australia. At p.575 the High Court said: "We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial.... 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
The High Court in that decision at p.576 cited with approval the earlier judgment of Dawson J in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657. At p.682, Dawson J said: "A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantel of prosecution or defence counsel. He is not equipped to do so, particularly in making a decision whether a witness should be called. As was pointed out in Richardson v The Queen [(1974) 131 CLR 116 at 122], he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision."
At p.684, his Honour expressed the conclusion that, in the trial under appeal, it "formed no part of the trial judge's functions to direct the prosecution's choice of witnesses."
In my view, there is no difference in legal principle between directing the Crown to call a witness and directing the Crown not to call a witness. Either of those two alternatives are the same in effect because they involve the interference by a trial judge in the undoubted discretion residing in the prosecution to choose the witnesses it will call and the evidence which it will lead.
Whatever be the criticisms of Mr Barnes made by the Inquiry in the areas which it examined, it will be a matter for the trier of fact in this case (coincidentally the trial Judge because no jury is empanelled) to make an individual assessment at the end of Mr Barnes' evidence and at the end of the case, having regard to all of the evidence, as to whether Mr Barnes' evidence in this trial should be accepted, in whole or in part, and what weight should be accorded to that evidence. That is not a decision which can be made in advance of hearing of the evidence-in-chief and the cross-examination whilst having the opportunity to observe the witness give his evidence.
This Court is not bound by reason of any precedent or any other basis to adopt the findings of the Inquiry in the ACT as being applicable automatically to evidence given by any witness on another occasion in a different trial. In my view, it would be wrong to approach the evidence of any witness in that way.
Accordingly, it will be a matter for the Crown to determine what evidence it seeks to lead from Mr Barnes and it will be a matter for the Accused, through his lawyers, to determine what approach ought to be taken to the evidence of Mr Barnes and whether they wish, in light of the evidence before the Court, to attack the accuracy and veracity of any of it or the credibility of the witness generally, or alternatively to accept some of the evidence and attack other parts of it.
They are all matters to be decided by the parties and this Court has no role to play in making a decision of the kind which the Accused seeks in the Notice of Motion.
For those reasons, the Notice of Motion will be dismissed.

Orders

I make the following orders: 1. Notice of Motion of the Accused of 15 October 2018 dismissed.

Amendments 11 December 2018 - Publication restriction lifted on 11 December 2018: 12 December 2018 - Typographical error [19] and [21] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2018

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