The reliability of forensic evidence central to the conviction of David Harold Eastman for one of Australia’s most notorious police killings has been subjected to a sweeping and scathing attack.
Counsel Assisting the Eastman inquiry, Liesl Chapman, SC, has used her closing submission to argue the work of forensic scientist Robert Barnes was “fundamentally flawed”.
Eastman was convicted of the 1989 murder of Assistant Australian Federal Police Commissioner Colin Stanley Winchester, who was shot dead as he got out of his car in his neighbour's driveway.
But the conviction is now the subject of an inquiry, which is reaching its climax after ploughingthrough months of evidence, hundreds of exhibits and dozens of witnesses.
The Eastman inquiry again assembled in the ACT Supreme Court building on Monday, after a lengthy break since the last public hearing.
One witness, Jennifer Woodward, formerly of the Director of Public Prosecutions, was recalled, before Ms Chapman launched into her closing submission to inquiry head, Acting Justice Brian Martin.
In a wide-ranging address, Ms Chapman argued it was open for the inquiry to find senior police believed their “in your face” tactics against Eastman might have caused him to speak about the crime in his bugged home.
That, she said, might have opened up the possibility for an application to exclude some of the evidence used against Eastman.
But her submission landed its biggest blow against Mr Barnes, the man whose damning forensic evidence linked Eastman with gunshot residue found at the crime scene.
“Do these problems cast doubt on the reliability and veracity of Robert Collins Barnes?” she asked at the outset of her closing.
“My submission is a resounding yes.”
Ms Chapman spent hours highlighting serious flaws with Mr Barnes’ work, something she said could have been concluded on existing records alone.
Some of the failures she described as “extraordinary”, including his failure to write reports on his organic analysis of gunshot residue or when he destroyed crucial exhibits in the case.
She described his mixing up of results from the crime scene with those from the suspect’s car as “obviously a bad result”.
“With respect, for a forensic scientist, it doesn’t get any worse than that,” she said.
Ms Chapman highlighted Mr Barnes’ “vehement resistance” to having his work reviewed, delays in him handing prosecutors his final report and his failure to produce data for other overseas scientists to look at.
The only results for independent testing that were produced, Ms Chapman said, were not in fact his, but those of his offsider at the Victorian State Forensic Science Laboratory, Norbert Strobel.
“It may be that he did not do the organic testing that he’d set out to do, or that the results did not support his opinions,” she said.
Ms Chapman said the flaws with his work were not disclosed to the defence, but did not lay the blame at the feet of the DPP.
She said it was a “fortuitous” combination of circumstances that resulted in the problems with Mr Barnes not being picked up.
This was, she said, partly the consequence of Eastman changing his lawyers, which meant a potentially damning request for data by an overseas expert, Dr Arie Zeichner, never happened.
Barnes made life difficult for the DPP, she said, giving them wrong information and failing to help them, meaning prosecutors never picked up on the flaws in the two years available to them.
“That’s the point of this inquiry,” she said.
“It has been discovered.”
She criticised the Australian Federal Police for failing to follow up on reports Mr Barnes was under internal investigation in his home state of Victoria.
The AFP said it had not chased up details of the report after assurances by an Assistant Victorian Police Commissioner.
But, Ms Chapman said, had they sought further information, they would have discovered the nature of the allegations was serious, and Mr Barnes was facing disciplinary charges.
The AFP should also have disclosed a taped conversation between detective sergeant Tom McQuillen and Mr Barnes, Ms Chapman said.
That conversation saw Mr Barnes, a supposedly independent witness, describe himself as a “police witness”, and lament the fact that overseas experts were criticising his work.
“It was known to the AFP, it should have been disclosed,” Ms Chapman said.
She said the DPP should have told Eastman’s defence team some of the contents of its conferences with overseas forensic experts, who looked at Mr Barnes’ work.
The DPP had made the experts available to Eastman’s defence, but this did not fulfill their obligations to disclose important information they’d learned in the conferences, she said.
She did, however, submit that little would turn on the fact that Eastman’s trial judge, Acting Justice Ken Carruthers, had been in possession of a series of mental health reports on the accused in June of 1995.
That evidence was given by former Supreme Court deputy registrar Jill Circosta, who said she had seen the judge in possession of the reports at the time.
Ms Chapman suggested it was likely her observation was wrong by a couple of months.
But, she said, even if the claims were accurate, it was not enough to make out a finding of apprehended bias.
The inquiry will continue on Tuesday, when counsel for the DPP, Dr Peggy Dwyer, is expected to give her closing submission.