Trial Judges Comments
The following are further comments made by his Honour in his summing up to the jury with regard to analyst Ballard’s actions:-
His Honour:
1: “Of particular significance, you may think, in relation to his reliability as a witness and without in any way suggesting that the other matters of criticism are without significance, is the evidence indicating that he, in carrying out the GC testing of 25 August 1999, exhibits S to GG as he put it, interacted with the machine whilst the tests were in progress or, as Mr Mayne put it, he fiddled with the data. On this ground alone it would be open to you to regard his evidence as quite unreliable if you came to the conclusion that that is what he did, not only in relation to exhibits S to GG specifically but also generally. I warn you that on this ground alone his evidence may be unreliable.”
2: “...It is open to you to ask yourselves of the reason why, as appears to be fairly clear you may think, from the evidence, an adjustment of the window and the computer program to account for the difference in retention time, why that was not fully documented and brought to attention when it occurred and why it was not fully exposed in the examination in chief of Mr Ballard when he gave evidence in chief.”
3a: In refusing the defense application for a verdict by direction his Honour made the following remarks:-
“As I have indicated to Madam Crown there are aspects of the evidence being vital to the Crown’s case on the more general basis on which Mr Bonnici puts his submission which I find somewhat disturbing, so much so that if I were the judge of fact I may well come to a conclusion favourable to each of the accused on that issue.”
3b: “I am inclined to see some merit in Mr Bonnici’s submission that the objective testing of these materials has significant aspects to my mind inconsistent with the subjective evaluation of Mr Ballard and indeed also of Mr Murtagh.”
3c: “The method adopted by Mr Ballard, as I have said, seems to be out of kilter in more than one significant respect with objective indications coming from computerised sources.”
4: “On an interlocutory judgement, after the Crown case had closed, I expressed a view as to the value of Mr Ballard’s evidence, in light of the cross-examination of him, and more particularly, in light of his having admitted “interacting” with the GCMS testing on 25 August 1999, when it had become apparent that the machine had produced a retention time inconsistent with his previously formed opinion. I went so far as to say that if I had been the judge of fact, on that basis, and on the basis of other misgivings more particularly relating to relative ion intensities, I would have rejected Mr Ballard’s evidence, and acquitted each of the accused, in respect of all charges, on that ground alone.”
5: On three or four separate occasions the trial judge made similar remarks to the following when addressing the Crown:
His Honour: The Crown should consider its position. If material like this is being presented to the jury, then perhaps the Crown should consider its position when these sorts of things appear. I had an inkling that something like that might be behind it, although I must confess I didn’t fully understand it until I went through the times with you a moment ago. Madam Crown, if these documents have been manipulated in that way, isn’t that something that the Crown should be considering?
The Crown, having heard a myriad of misdeeds by both analysts including a lack of compliance with the Drug Misuse and Trafficking Act, the AFDL Procedures Manual, the National Association of Testing Authorities requirements, scientific instrument manuals and the various codes of conduct to which they were obligated together with physical interference with testing which gave results contrary to their previously formed opinions or agenda, attempts at concealment and their non- compliance with standard scientific practice, failed to act on the trial judge’s advice on each occasion it was offered.
The trial judge made a point of telling the jury that in most cases the analysts do not attend court and that the usual practice is for the analyst’s certificate to be presented as Crown evidence. In this case the science in its entirety was questioned, found at the very least to be wanting, and at worst to be biased, misleading, and unscrupulous. Without the supply of the Bench Copy of the Brief of Evidence, their misrepresentation of tests performed would never have been exposed.
The Director, Zoran Skopec was complicit in the actions of his analysts by producing no less than four statements in which he attempted to explain their actions and excuse their disregard for procedures and in so doing put at risk the value of those statements. Having stated that he personally checked and signed analyst Ballard’s tests he begins his explanations with the phrase ‘in theory’. The Director’s statements were further undermined because he failed to give evidence in support of them which caused the trial judge to warn the jury, that because the Director did not give evidence, the inference could be drawn that Mr Scopec’s evidence would not have assisted the Crown’s case and that signatures and initials attributed to him were not an endorsement of the validity of tests on which they appear.
The words of Justice Barr of the Supreme Court and supported in his opinion by Chief Justice Spigelman and Justice Bergin, describe the actions of analyst Ballard particularly with regard to his Gas Chromatography tests of 24 August 1999:
"...what Mr. Ballard described as his "interaction" with the testing apparatus, his putting forward a misleading summary of tests programmed as though they were carried out in terms and his not producing an accurate summary of tests actually done as throwing serious doubt on the integrity of his opinion..."
Analyst Ballard ran a Gas Chromatography test on a different sample, numbered 992027 on 14 September 1999 and again interacted with the instrument by widening the window to 0.3.minutes - this plus or minus setting equates to a calibration window 36 seconds wide.
In these two tests alone, in which analyst Ballard ‘interacted’ with the testing, and leaving all the other breaches of law, procedure and codes separate, this analyst has Perverted theCourse of Justice, in lying under oath he has committed Perjury and in his subsequent attempts to conceal his actions he was in Contempt of Court. No such charges have been laid.
The Expert Witness Immunity Law does not protect the expert against criminal charges and yet there have been no charges brought against analyst Ballard and this inaction supports Justice Woods observations of May 2002 when he said, “...the courts have been reluctant to initiate prosecutions for contempt or perjury where evidence is offered in the form of an opinion.”
This inaction also demonstrates that nothing has changed since Chamberlain, that is bad science and/or corrupt science is still proffered in our courts and even when exposed no-one is held accountable. Like Joy Kuhl before them, it must be noted that analysts Murtagh and Ballard are no longer in the employ of AGAL nor is the then Director of AGAL Zoran Skopec.
In questioning the immunity afforded analyst Ballard and in another court, Young CJ in EQ made the following remarks on 14 December 2007
“I have been greatly disturbed by this case as it would seem to the man or woman in the street that if an employee of the Commonwealth whom the community relies on for scientific accuracy, deliberately tampers with his or her scientific instruments to produce a false result knowing that such result may have drastic consequences for a person, that person should be able to sue.”
