R v Warwick (No.53)

1. [1]

   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.

2. [2]

   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,

3. [3]

   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.

4. [4]

   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

1. [5]

   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.

2. [6]

   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.

3. [7]

   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.

4. [8]

   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:

5. [9]

   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

1. [10]

   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.

2. [11]

   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).

3. [12]

   To that end, Mr Conolly contended that

4. [13]

   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.

5. [14]

   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.

6. [15]

   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.

7. [16]

   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

1. [17]

   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.

2. [18]

   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.

3. [19]

   In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at p.517 Barwick CJ said:

4. [20]

   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:

5. [21]

   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:

6. [22]

   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."

7. [23]

   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.

8. [24]

   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.

9. [25]

   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.

10. [26]

    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.

11. [27]

    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.

12. [28]

    For those reasons, the Notice of Motion will be dismissed.

Orders

1. [29]

   I make the following orders:

   1. (1)

      Notice of Motion of the Accused of 15 October 2018 dismissed.