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Eastman V the Queen [2015] ACTCA 24

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Eastman V the Queen [2015] ACTCA 24 Networked Knowledge Law Report Eastman v The Queen [2015] ACTCA 24 This is an edited version of the judgment and the expressions contained within it should not be relied upon without checking against the original judgment which is available at http://www.austlii.edu.au/au/cases/act/ACTCA/2015/24.html - this page set up by Dr Robert N Moles - underlining where it occurs is for editorial emphasis. 10 June 2015 - Wigney J, Walmsley and Robinson AJJ Application for judge to disqualify himself from hearing an application for permanent stay of the accused’s trial – apprehended bias – where apprehended bias claimed to arise from past professional association between judge and witness - whether incorrect test for apprehended bias applied – whether judge should have recused himself on the basis of apprehended bias. The Court orders that: (1) The appeal is allowed. (2) The order made by Whealy AJ [W] on 24 April 2015 dismissing the appellant’s application that W recuse himself from hearing the appellant’s application that his trial be permanently stayed is set aside. (3) W be disqualified from hearing the appellant’s application that his trial be permanently stayed. THE COURT: The test for a judge to apply in considering an application for disqualification or recusal on the basis of apprehended bias is well settled and relatively easy to state. It is, however, not always easy to apply. It involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy to draw. This is such a case. David Eastman [E] is to be re-tried on a charge that he murdered the Assistant Commissioner of the Australian Federal Police. E was convicted in November 1995. In August 2014 the conviction was quashed and a new trial ordered following a board of inquiry. E will apply for a permanent stay of his retrial. That application has been listed for hearing before W in July 2015. In April 2015, E applied for W to recuse himself on the basis of apprehended bias. The basis for that application was the past longstanding professional association between W and Mr Michael Adams QC [A] now a judge of the Supreme Court of New South Wales. A was the lead Crown Prosecutor at E’s trial in 1995. His actions as Crown Prosecutor at the trial are to be the focus of one of the grounds of E’s stay application. The professional association between W and A is that both served as judges of the Supreme Court of New South Wales for a period of about 12 years from 2000 to 2012. On 24 April 2015, W dismissed the recusal application. It is against that judgment that E seeks leave to appeal to this Court. Background facts It is unnecessary to go into great detail in relation to E’s original trial and conviction. It is, however, necessary to provide some background, if only to highlight the somewhat extraordinary circumstances of this matter and to put the recusal application in context. 10 January 1989 Winchester was shot and killed. December 1992 the Coroner committed E to stand trial. 29 March 1993 E charged with murder. A was the lead Crown Prosecutor. The trial ran for approximately 6 months. “[i]t would not be an exaggeration to describe it [the trial] as chaotic” Eastman v The Queen (1997) 76 FCR 9 at 32. His behaviour at times during the trial, including at times in front of the jury, was also erratic, if not bizarre. An important, if not critical, aspect of the Crown case was expert opinion evidence that purported to link gunshot residue found at the scene of the crime with gunshot residue found in Eastman’s car. The lead expert witness in this respect was Robert Barnes [B] from the Victorian Forensic Science Laboratory. The circumstances relating to B and his evidence led the board of inquiry to find that a substantial miscarriage of justice had occurred in E’s trial. 3 November 1995 a verdict of guilty. E unsuccessfully appealed to the Federal Court of Australia and the High Court. A appeared as lead counsel for the Crown in the Full Court and opposed the leading of fresh forensic evidence from Dr Wallace. The Court refused to admit it. 2000 E applied for a judicial inquiry - application declined. 2001 an inquiry into E’s fitness to plead at his trial plagued by numerous judicial review applications and appeals. No miscarriage of justice. The recommendation that the Executive take no action was the subject of judicial review proceedings and appeals by E also unsuccessful. Further applications for an inquiry were dismissed as were the subsequent appeals. On 3 September 2012 further inquiry ordered into E’s. The subject of particular focus were the alleged non-disclosure of documents by the Crown and serious issues concerning the reliability of the expert evidence in particular the evidence of B. Important documents said not to have been disclosed related to the integrity, independence and reliability of B and his evidence. 29 May 2014 the Martin Board of Inquiry Report A substantial miscarriage of justice had occurred. E did not receive a fair trial according to law and was denied a fair chance of acquittal. The issue of guilt was determined on the basis of deeply flawed forensic evidence - E was denied procedural fairness concerned with disclosure by the prosecution of all relevant material. He had 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 Eastman is guilty of the murder, a nagging doubt remains. The case based on the admissible and properly tested evidence is not overwhelming; it is a strong circumstantial case. There is material pointing to an alternative hypothesis consistent with innocence, the strength of which is unknown. The substantial miscarriage of justice should not be allowed to stand uncorrected. It would be contrary to the fundamental principles that guide the administration of justice in Australia and would bring the administration of justice into disrepute and undermine public confidence in the administration of justice. I recommend that the Executive grant a pardon and that the conviction be quashed. 22 August 2014 Full Court It quashed the conviction and found that it would be an affront to justice to permit the conviction to stand as the trial did not observe the requirements of the criminal process in a fundamental respect, and that E lost a fair chance of acquittal. Retrial was ordered. Further indictment has been presented against E and a date for the retrial has not been set. W has been appointed to hear the stay application. On 13 April 2015 E filed an application to order W to recuse himself. It related primarily to the longstanding professional association between W and A as judges of the Supreme Court NSW which is essentially uncontroversial. 24 April 2015 W dismissed the recusal application. 1 May 2015 E appealed the dismissal. Leave to appeal is necessary because the recusal application is interlocutory. Leave to appeal E was granted leave to appeal because the judgment was attended with sufficient doubt. Whilst ordinarily an applicant for leave to appeal must show that substantial injustice will result from a refusal of leave that is not always the case in relation to recusal applications – Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [86] “an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted, at least if a long and costly trial would be wasted if the judge’s decision were incorrect.” This is such a case. Apprehended bias - Relevant principles The relevant principles in relation to apprehended bias are well settled - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337: 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.
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