R v David Harold Eastman [1995] ACTSC 101 (5 September 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. DAVID HAROLD EASTMAN
No. SCC 111 of 1992
Number of pages - 7

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CARRUTHERS AJ

HEARING

CANBERRA, 5 September 1995
5:9:1995

Counsel for the Prosecution: Mr. Adams, QC with

Mr. J. Ibbotson and
Mr. J. Brewster

Solicitors for the Prosecution: ACT Director of Public
Prosecutions

Counsel for the defendant: Mr. W. Terracini

Solicitors for the defendant: Messrs. Colin Daley Quinn

DECISION

REASONS FOR DECISION (15 November 1995)
CARRUTHERS AJ On 5 September 1995 I rejected an application by Mr. Terracini of counsel for the accused, firstly, that I take the exceptional step of inviting the Crown to re-open its case (which it had closed on 30 August) and, secondly, in the event that the Crown Prosecutor declined to do so, that I take the equally exceptional step of myself recalling certain witnesses. I indicated that I would give my reasons for that decision at a later date. This I now do.

2. The immediate situation which gave rise to this application relates back to 11 August 1995. On that day the instructions of Mr. Terracini and the other counsel and solicitor in the case were withdrawn by the accused. Thereafter he represented himself until 30 August on which date the Crown closed its case. During that period the accused elected to cross-examine certain witnesses and in relation to other witnesses he declined to cross-examine them. There is no doubt that the accused was well aware of the rule in Browne v. Dunn (1893) 6 R 67 and the possible consequences of his declining to cross-examine witnesses. And, indeed, as far as Commander Ninness is concerned (he having been called on 30 August) I expressed to the accused in the strongest terms the need for him to give careful and anxious consideration to his decision not to cross-examine Commander Ninness. However, despite my counsel in this regard, the accused elected not to cross-examine Commander Ninness.

3. On the morning of 31 August, which is the occasion upon which I would have called upon the accused to present the defence case, Mr. Terracini re-appeared in Court. He was instructed by Mr. Ross, solicitor on behalf of the accused, purely to make an application for an adjournment of the trial until Tuesday, 5 September to allow time for a ruling from the New South Wales Bar Council as to whether Messrs. Terracini, O'Loughlin and Burgess could ethically resume their representation of the accused. This perceived need for a ruling from the Bar Council was related to certain very grave criticisms which the accused had made of Mr. Terracini, in the absence of the jury, on 21 August, when the latter briefly re-appeared in Court, and equally grave criticisms which Mr. Terracini had made of the accused (by way of response) which he wished to have recorded upon the transcript.

4. I granted Mr. Terracini's application and stood the matter over until 5 September.

5. When the Court re-assembled on that morning, Mr. Terracini announced that he appeared with Mr. Burgess instructed by Mr. Ross for the accused and that Mr. O'Loughlin, who was also retained as part of the defence team would be joining them later that week. Obviously a ruling from the Bar Council permitted this course to be followed.

6. Mr. Terracini then immediately made an application in the following terms:

"I have an application though to make, your Honour, before we
commence and the application is simply that a number of
witnesses be called by the Crown. We appreciate that the Crown
has closed its case, and that I certainly cannot make an
application as of right. Not only would I need the leave of
your Honour, but also the willingness of the Crown to call these
witnesses, but they would include all of the witnesses that gave
evidence about the taping of the accused in his premises at
Jerilderie Court, Reid.

They would also include Commander Richard Ninness, Detective
Cotterill, Dr Roantree, Mr. Ross, Donna Heritage, Mr. Barbara,
Commander Worthy and Mr. Fisher so that the accused has a full
opportunity whilst being legally represented to put his case.
Now, I do not gainsay that what flows from the transcript when
we were not here indicates that the accused was invited to
cross-examine certain witnesses and chose to cross-examine some
and not others."

7. Obviously, Mr. Terracini's reference to the calling of witnesses should have been a reference to the recalling of witnesses.

8. Mr. Terracini went on to say that he had been informed that the Crown was not prepared to re-open its case and he accepted that the Crown could not be directed to re-open its case.

9. However, he asked me to invite the Crown to re-open its case and if I declined to do so, to call witnesses of my own motion. Again it would have been more appropriate if I had been requested to recall witnesses of my own motion.

10. Mr. Adams, QC, leading for the Crown, confirmed to me that he was not prepared to re-open his case and indicated in respect of certain witnesses that they could not be recalled in any event because of illness or absence from the jurisdiction.

11. I declined to take either step suggested by Mr. Terracini and indicated (as I have said) that I would give reasons at a later date.

12. With the exception of Mr. Fisher and Mrs. Heritage, the accused was (of his own volition) unrepresented at the time the witnesses identified by Mr. Terracini were presented for cross-examination.

13. Mr. Fisher is a former officer with the Australian Federal Police who was brought from Darwin to give evidence in these proceedings. He was briefly cross-examined and Mr. Terracini then made an application that rather than excuse him, I should indicate to the jury that it was not possible for a good reason to conclude Mr. Fisher's evidence on the afternoon of 10 August and that he would be recalled later. I acceded to this application.

14. This application was made by Mr. Terracini because he wished to make inquiries in relation to certain of the evidence which Mr. Fisher had given. However, be that as it may, no application was thereafter made during the course of the Crown case that Mr. Fisher be recalled.

15. With regard to Mrs. Heritage, the transcript records that at the conclusion of her evidence-in-chief, Mr. Terracini said:

"I have no questions as this time. If there is an application
to have her recalled we will notify the Crown in sufficient time
to have the witness brought back."

16. No such application was made during the remainder of the Crown case.

17. By way of general observation, it should be noted that throughout the Crown case, the accused regularly withdrew the instructions of his legal representatives and from time to time represented himself. During the period when Mr. Terracini was the leading counsel for the defence team, instructions were withdrawn on approximately six occasions. Prior to that the instructions of other counsel who had represented the accused in the trial were withdrawn, including that of one experienced senior counsel, Mr. Michael Williams, QC. This continual withdrawal of legal representation imposed enormous strains upon the judicial process and the conduct of this trial in any conventional manner. Regrettably, the position was exacerbated by other conduct of the accused, both when he was represented and when he was unrepresented, which was obviously designed to delay, frustrate and manipulate the trial process.

18. This conduct can clearly be gleaned from a perusal of the transcript.

19. This unfortunate conduct brought into play, of course, a lot of considerations. Firstly, the over-riding obligation remained upon the Court to ensure, as far as possible, that the accused received a fair trial according to the law. A criminal trial of this difficulty and length necessarily involves the trial judge being required to make a number of discretionary judgments. These judgments require a balancing between the rights of the accused and rights of the Crown. It goes without saying that disruptive behaviour on the part of an accused can render the exercise of a discretion by the judge an extremely difficult matter indeed. It must also be remembered that the trial must, despite such disruptions, be conducted in such a fashion that the jury retain their confidence in the integrity of the trial in which they are participating.

20. In recent years the senior criminal courts of this country led by the High Court have stressed the need for fairness in criminal trials and an avoidance of the pollution of the purity of the stream of justice. There can be little doubt that this attitude has had the consequence that we have not had in this country any of the major miscarriages of justice such as have occurred in other criminal jurisdictions.

21. However, be that as it may, the High Court has consistently re-affirmed two basic propositions. The first is that a criminal trial is of an adversary nature and not an inquiry. Thus in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ said at 516-517:

"However, the rules appropriate in this respect to civil trials
cannot be transplanted without qualification into the area of
the criminal law. But the underlying concepts of the adversary
nature of a trial, be it civil or criminal, and of the desirable
finality of its outcome are valid in relation to the trial of a
criminal offence.

As Smith J rightly said in expressing the reasons of the Full
Court in this case, 'Under our law a criminal trial is not, and does
not purport to be, an examination and assessment of all the
information and evidence that exists, bearing on the question of
guilt or innocence' (1974) V.R. 201 at 214. 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. Consequently if the proceedings are not blemished by error on
the part of the judge, whether it be on a matter of law or in the
proper conduct of the proceedings, or by misconduct on the part of
the jury, there has been a fair trial. It will not become an unfair
trial because the accused of his own volition has not called
evidence which was available to him at the time of his trial, or of
which, bearing in mind his circumstances as an accused, he could
reasonably have been expected to have become aware and which he
could have been able to produce at the trial. Great latitude must
of course be extended to an accused in determining what evidence by
reasonable diligence in his own interest he could have had available
at his trial, and it will probably be only in an exceptional case
that evidence which was not actually available to him will be denied
the quality of fresh evidence. But he must bear the consequences of
his own decision as to the calling and treatment of evidence at the
trial."

22. And in Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657 at 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."

23. The adversary nature of a criminal trial was confirmed by the High Court in Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292: see, for example, per Deane J at 334.

24. The second proposition is: "In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the Crown acting on behalf of the community as well as to the interests of the accused'"; per Deane J in Dietrich at 335, quoting Gibbs ACJ and Mason J in Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75 at 101.

25. Relevantly, in Moss v. Brown and Another (1979) 1 NSWLR 114 at 126, the New South Wales Court of Appeal (Moffitt P, Reynolds and Hutley JJA) said:

"In any discussion of fairness, it is imperative to consider the
position of all parties. It is sometimes forgotten that the
Crown has rights and, as it has a heavy responsibility in
respect of the invoking and enforcement of the criminal law,
which includes seeing that the public revenue is not imposed
upon, it is entitled to maintain those rights, even if they may
bear heavily upon some accused. As Lord Goddard CJ said in R
v. Grondkowski (1946) KB 369 at 372: 'The judge must consider
the interests of justice as well as the interests of the
prisoners'".

26. In the light of these authorities, it seems to me that, ever vigilant as a trial judge must be to ensure so far as it is possible that an accused person has a fair trial according to the law, nevertheless, the trial process must not be allowed to degenerate, by reason of manipulation by the accused, to the position where it is at his or her mercy. This would be so inimical to the public interest and the general administration of justice that it would necessarily lead to an undermining of public confidence in the criminal justice system.

27. Thus in Dietrich (at 335-336) Deane J said:

"There are circumstances in which a criminal trial will be
relevantly fair notwithstanding that the accused is
unrepresented. The most obvious category of case in which that
is so is where an accused desires to be unrepresented or
persistently neglects or refuses to take advantage of legal
representation which is available."

28. His Honour also referred to Regina v. Greer (1992) 62 ACrimR 442.

29. It is implicit in the remarks which Mr. Terracini made in support of his application (as quoted earlier) that he wished to overcome the impact of the rule in Browne v. Dunn when the accused embarked upon his case. He was concerned that the defence might be impeded from adducing evidence of matters which should properly have been put to Crown witnesses. However, he did not descend into any detail in this regard.

30. In The Queen v. Apostilides [1984] HCA 38; (1984) 154 CLR 563, the High Court dealt authoritatively with the issues touching upon the responsibility and powers of a trial judge when a Crown Prosecutor declines to call as a witness a person whose name appears on the indictment and who would be expected to be able to give evidence material to the matters in issue in the trial. However, the High Court specifically pointed out (at 565) that Apostilides was "not concerned with the related, but nevertheless distinct, topics of the responsibility and powers of a trial judge with respect to the recall of a witness after the party calling him has closed his case or the calling of evidence in rebuttal".

31. I have been unable to find any authority in Australia, so far as my researches are concerned, directly on point with regard to the two issues which have arisen upon Mr. Terracini's application. I note that in Payless Superbarn (NSW) Pty Ltd v. O'Gara (1990) 19 NSWLR 551 at 556 (a civil case), Clarke JA expressed the view (by way of obiter dictum) that one alternative for a trial judge endeavouring to mitigate the effect of a breach of the rule in Browne v. Dunn may be to require the relevant witness to be recalled for further cross-examination, before allowing the contradictory evidence to be given.

32. The relevant English decisions are collected in Archbold: Criminal Pleading, Evidence and Practice (1995 Re issue vol. 1) at paras. 8-250-252. Archbold states the general principle thus: "The judge has a discretionary power to recall, or allow the recall of, witnesses at any stage of the trial prior to the conclusion of the summing-up and of putting such questions to them as the exigencies of justice require ....".

33. I shall assume for the purpose of these reasons that I had the power (over objection by the Crown) to require the recall of all or any of the witnesses identified by Mr. Terracini. Such a discretion would, however, have to be exercised with circumspection.

34. I have no difficulty in assuming that I had the power to invite the Crown Prosecutor to recall all or any of these witnesses. However, I have no doubt that if I had extended that invitation, the learned Crown Prosecutor would have declined to do so. There the matter would have ended so far as the Crown Prosecutor was concerned because I lacked the power to direct the Prosecutor to recall any of the witnesses.

35. It seemed to me that there were compelling reasons why I should not myself take the exceptional course of recalling all or any of the witnesses identified by Mr. Terracini. I had by this stage, regrettably, come to the view (after careful consideration) that since the outset of the trial the accused had embarked upon a deliberate campaign to delay, frustrate and manipulate the trial process.

36. I was satisfied that the election of the accused not to cross-examine subject witnesses was a deliberate tactical decision and not the result of an oversight or a sense of inadequacy in that he was incapable of cross-examining them himself. Thus, the situation which had developed in the trial when Mr. Terracini made the subject application, was one which had been brought about by the accused's own tactical decisions and contrivance.

37. By way of example, the accused withdrew the instructions of Mr. Terracini and the other defence counsel at the conclusion of a voir dire cross-examination of Mr. Barbara by Mr. Terracini. Thus when Mr. Barbara gave evidence before the jury, the accused was unrepresented.

38. Of course, no question could arise in my decision-making process of the accused being punished for his disruptive behaviour.

39. Further, by the time this application had been made, there was some four and a half thousand pages of transcript covering the evidence of a vast number of Crown witnesses. The Crown case had been a lengthy and in some respects a complex one. Much care and planning must necessarily have gone into the presentation of the evidence of the various witnesses in an orderly and logical fashion. For the trial judge to have intervened by recalling a number of Crown witnesses, the balance of the Crown case must necessarily have been upset and the Crown put to a disadvantage through no fault of its own. A case such as the present one is clearly distinguishable from one where the only question which arose was whether one Crown witness should be recalled by the trial judge.

40. For these reasons I declined to follow either of the courses suggested by Mr. Terracini.