Eastman v Director of Public Prosecutions (No 13)

• Jurisdiction: Australian Capital Territory
• Judge: Osborn,Whelan,Priest AJJ
• Judgment Date: 02 December 2016
• Docket Number: File Number: ACTCA 15 of 2016
• Date: 02 December 2016
• Court: Court of Appeal of ACT

[2016] ACTCA 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Osborn, Whelan and Priest AJJ

File Number: ACTCA 15 of 2016

David Harold Eastman

(Applicant)

and

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)

Legislation Cited:

Court Procedures Act 2004 (ACT)

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)

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.

Decision:

Leave to appeal refused.

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

1 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.

2 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.

3 The applicant appealed against his conviction to the Full Court of the Federal Court 1 and the High Court, 2 but without success.

4 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 Inquiry’), who, on 29 May 2014, pursuant to s 428(1) of the Act, provided his report 3...