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Disclosure in the Eastman case ... Martin report finds significant amount of material not disclosed by the prosecution to the defence ... Disputes among expert witnesses ... Failure to disclose found to be inadvertent ... Nonetheless, there was a denial of procedural fairness 

Brian Martin: failure to disclose was significant

Michael Adams, now Justice Adams of the NSW Supremes, the crown prosecutor at the Eastman trial, admits that the defence in that case was entitled to see a significant amount of material and evidence that was not provided to it. 

Acting Justice Brian Martin's findings on the conviction of David Eastman raise important issues about the lack of disclosure and the impact this had on the trial process. 

Eastman was sentenced to life imprisonment in 1995 for the shooting murder of ACT Police Commissioner Colin Winchester. 

Martin's board of inquiry found that Eastman 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 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."  

However, Martin did say that he was "fairly certain" the applicant is guilty of the murder of the deceased, yet "a nagging doubt remains". The board of inquiry recommended that Eastman be granted a pardon and that his conviction for the murder of Colin Winchester be quashed.  

*   *   *

Adams: adhered to high standardsThe board of inquiry pressed Adams on the failure to reveal to the defence team the disputes among the forensic experts on the gunshot evidence that was used to convict Eastman. 

It's all the more pertinent because Adams is now suing Fairfax Media for defamation over an article from May 2012 in The Canberra Times by senior journalist Jack Waterford. 

Waterford raised the issue of disclosure that was subsequently explored in detail by the Martin board of inquiry.  

The defamation case is before Justice Steven Rares, who is also the presiding judge in the ACT Supremes now hearing whether Eastman's conviction should be quashed. 

Adams had Tom Molomby acting for him, and has now changed to Bruce McClintock, with Tom Blackburn for the defendants. The question of whether there should be a defamation jury for this case will be keenly observed. 

The main expert witness relied on by the prosecution at Eastman's trial was Robert Barnes, who provided gunshot residue analysis linking the accused to the murder scene. 

His methods and record keeping have been called into question and Barnes himself admitted that his earlier evidence may have been misleading. 

His work on the gun shot residue was tested by other experts - Robin Keeley from the UK Metropolitan Police Forensic Science Laboratory; Dr Ari Zeichner and Professor Shmuel Zitrin, forensic scientists with the Israeli police; and Roger Martz from the FBI in Washington DC. 

To varying degrees they disagreed or questioned aspects of Barnes' analysis. 

Barnes was particularly critical of Dr Zeichner, and said to others on the prosecution team that Zeichner should be challenged and destroyed. 

Before the board of inquiry Adams was asked: 
 

Q.  [They are] matters, are they not, that should have been disclosed to the defence?

A.  I think on reflection probably. Although their differences were clear from their reports, but Barnes expressed himself in immoderate language, intemperate language.

Q.  And the attitude, for example, demonstrated by Mr Barnes saying that Mr Zeichner must be challenged and destroyed?

A.  Yes, that's silly.

Q.  It might be silly, but if the defence were wanting to challenge his ... ?

A.  Objectivity.

Q.  ... objectivity, it would be useful information, wouldn't it?

A.  On reflection, I think so, yes.

Q.  And if the defence as well just simply want to know that one expert has a strong opinion contrary to another expert, that's information that they could use during the trial?

A.  I think it's useful. 

Adams added that if the defence had asked for the material he would have handed it over without hesitation. 
 

Q.  I suppose, though, from the defence point of view, given all the material that said he was not objective and demonstrated a lack of objectivity and a desire to assist the prosecution and they had also from overseas experts a view that he was a person who was emotionally involved who'd spread himself across too many - trying to be an expert in too many areas, et cetera, from a defence cross-examination point of view, it would have been pretty useful ammunition? 

A.  I think so. 

Q.  In combination? 

A.  I agree. 

Acting Justice Martin said: 

"The failure to disclose to the defence the material I have discussed was not a failure of minor import. In the context of the importance of Mr Barnes' evidence to the prosecution case in linking the applicant's car to the scene of the murder, it was a particularly significant failure. 

In contrast to the futile attempts at trial to attack Mr Barnes' credibility and independence, attempts which were successfully ridiculed by counsel for the prosecution, this undisclosed material would have provided the defence with a firm basis upon which to cross-examine and comment." 

Adams agreed that the prosecution should have disclosed physical differences identified by Mr Martz between the cartridge propellant in the possession of the FBI and the propellant reported by Barnes. 

He also agreed that the information that Barnes was an expert in too many areas and was emotionally involved with the prosecution case would have been "pretty useful" information for defence cross-examination. 

Then there was the issue posed by Professor Zitrin, that Barnes' explanations about anomalies in the database he used were inadequate. 

Adams thought that too should have been disclosed. 

A.  Yes I think so. Certainly the defence should have had this information. The only matter that leads me to qualify the duty of the prosecutor to volunteer the material is that I think my assumption would have been that the defence had access to Dr Zitrin and Dr Zitrin would have told them exactly what he told us. If they were asking - it's a rather obvious question - what's the reliability of Barnes? What’s the reliability of the database and so on, he would of? And I think we told him to be completely frank. We told them to be completely frank with the defence. That's the only way, really, that I might not have turned my attention to the question. 

Q.  But there is a duty of disclosure on a prosecution about those matters?

A.  I think so. 

Q.  And I'm not saying that - if you're going to make that assumption then perhaps one needed to check to see whether it had been disclosed in the defence conference with Mr Zitrin given that the prosecution had a transcript of that conference. Because I'm suggesting this was fairly important information for the defence to know, namely that Barnes' explanation for anomalies in the database were not satisfactorily explained in Dr Zitrin's view?

A.  Yes. On reflection I think that's right.

Apart from problems with the nature and quality of Barnes' work, there was also the issue that he faced disciplinary charges brought by the Victorian police in relation to his conduct at the Victorian Laboratories.  

The AFP knew about this, while Adams said he was not aware on this investigation. 

However, Martin said the prosecution's duty to disclose extended to the coppers and not just the DPP and counsel. 

*   *   *

Robert Barnes: emotionally involved

So, Adams readily admitted that material in the possession of the prosecution wasn't passed to the defence, when there was a duty to do so. 

Sometimes he mistakenly thought the information had been passed on; or they should have asked for it; or it was inadvertently overlooked in what was a colossal amount of material. 

Adams said he would have waived legal profession privilege as to the arguments between the scientists, had anyone asked, but no one did. 

Martin said: 

"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."

Nonetheless, the board of inquiry said that without proper disclosure Eastman was denied procedural fairness.

"As a consequence, there has been a substantial miscarriage of justice." 

*   *   *

Eastman: denied a fair chance of acquittal

Eastman did himself no favours during his trial before Justice Ken Carruthers and a jury. 

His explosive outbursts make it difficult for the judge, his lawyers (whom he sacked) and the prosecution. 

He are some examples from the Martin report: 

July 18, 1995:

HH:  My duty is to apply the law, I was - I am bound by my - 

The accused:  You would not know the law from a bull's foot. You are - 

HH:  I was bound --

The accused:  You are a silly old man, and a rather -

HH:  Yes, very well. You may leave -

The accused:  - a rather nasty old man as well.

August 24, 1995

Adams:  There is a specific list.

The accused:  Listen, shut up, fat arse. Shut up, you stupid fat slob. 

HH:  Look, this has got to stop. Turn the sound off. This has just got to stop. Now, you carry on with your evidence in-chief. 

[snip] 

HH:  Yes, I consider it is relevant. There has never been any prior objection to it and I propose to allow it.

The accused:  Well, you have got an objection now.

HH:  Yes, and I have just over-ruled it.

The accused:  You corrupt shit. 

[snip]

HH:  Well, now, do you have any questions by way of cross-examination of the witness?

The accused:  Yes, I would like to ask your Honour why you are such a corrupt shit.

[snip] 

The accused:  Yes, I wish to ask your Honour why you are such a lying cunt. 

HH:  Yes, well, I will treat that as no. You are excused, constable.

[snip] 

HH:  Very well. Do you wish to ask the constable any questions?

The accused:  Yes, your Honour. I was wondering whether all New South Wales judges are lying, corrupt shits.

HH:  I will prove [sic] that as no. You are excused, constable. 

September 5, 1995: 

Mr Terracini:  Well, it is a difficult task.

HH:  Well, it is not difficult. It is no different from any other case. And the Crown objects, I give a ruling and then an attempt is merely made to circumvent the ruling, which imposes a really quite intolerable strain on me, because I really do not feel that I should have to attempt -

The accused:  You poor little thing. Dear, oh dear. 

[snip]

The accused:  Well, I do not intend to be bullied to that extent. I have my rights -- 

Mr Terracini:  It is now 4.05, your Honour.

The accused:  -- and I am not going to continue giving evidence under duress. Now, either you put a stop to it, or I interrupt my evidence until you are prepared to do it - your duty as a judge to stop this sort of thuggery, and they are getting the clear message that it's okay with you. 

Mr Terracini:  Mr Eastman, if I could just mention this. It is now five past four, your Honour, we could simply raise these matters with your Honour --

HH:  I think that we should carry on until 4.15, dealing with the accused's evidence relating to the trial.

Mr Terracini:  Certainly.

See also:

A substantial miscarriage of justice 

Eastman Inquiry website