David Harold Eastman

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Rares J,Wigney J,Cowdroy AJ
• Judgment Date: 23 June 2014
• Date: 23 June 2014
• Docket Number: File Numbers: SC 222 of 2014; SC 253 of 2014

[2014] ACTSCFC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY FULL COURT

Before:

Rares J, Wigney J, Cowdroy AJ

File Numbers: SC 222 of 2014; SC 253 of 2014

David Harold Eastman

Director of Public Prosecutions

Director of Public Prosecutions for the Australian Capital Territory

(Plaintiff)

and

David Harold Eastman

(First Defendant)

The Australian Capital Territory

(Second Defendant)

Attorney-General for the Commonwealth

(Intervener)

Representation:

Counsel:

Mr S Gill with Mr A Flecknoe-Brown

Mr J Kirk SC with Ms A Mitchelmore and Ms P Dwyer

Mr J Kirk SC with Ms A Mitchelmore and Ms P Dwyer (Plaintiff)

Mr S Gill with Mr A Flecknoe-Brown (First Defendant)

Mr P Garrisson S-G SC with Mr N Hancock (Second Defendant)

Mr J Gleeson S-G SC with Mr G Aitken (Intervener)

Cases Cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 applied

Annetts v McCann (1990) 170 CLR 596 applied

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 applied

Commissioner of Police v Tanos (1958) 98 CLR 383 applied

Dickason v Dickason (1913) 17 CLR 50 applied

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 applied

Eastman v The Queen (2000) 203 CLR 1 applied

Elliott v The Queen (2007) 234 CLR 38 applied

HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 applied

Hilton v Wells (1985) 157 CLR 57 applied

Hogan v Australian Crime Commission (2010) 240 CLR 651 applied

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 applied

R v Hillier (2007) 228 CLR 618 referred to

R v Hunt ; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 applied

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 applied

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 applied

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 distinguished

Scott v Scott [1913] AC 417 applied

Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 applied

Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 referred to

The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 applied

Wainohu v New South Wales (2011) 243 CLR 181 applied

Weiss v The Queen (2005) 224 CLR 300 referred to

Legislation Cited:

Crimes Act 1900 (ACT)

Inquiries Act 1991 (ACT)

Judiciary Act 1903 (Cth)

Legislation Act 2001 (ACT)

Catchwords:

CONSTITUTIONAL LAW — JUDICIAL POWER — whether Full Court exercises judicial power when making an order confirming or quashing a conviction under s 430(2) of the Crimes Act 1900 (ACT) — whether s 431 of Act applies to exercise of Full Court's jurisdiction under s 430(2) so as to prevent it hearing submissions — whether legislature can confer powers incompatible with institutional integrity and independence on Ch. III courts — incompatibility of functions — courts protected from legislative and executive incursion — characteristic of courts to act openly, impartially and in accordance with fair and proper procedures — legislation invalid if functions conferred on court repugnant to or incompatible with institutional integrity and independence — right of affected parties to be heard fundamental to exercise of judicial power — duty of court to interpret legislative provision as operating to the full extent of but not exceeding legislative power under s 120(1) of the Legislation Act 2001 (ACT) — whether s 431(1)(b) or (2) can be severed under s 120(2) of the Legislation Act 2001 (ACT)

STATUTORY INTERPRETATION — where statute requires decision-maker to have regard to a matter or matters — decision-maker must give weight to such matters as a fundamental element in decision-making

Held:

1. (1) determination of appropriate order to make under s 430(2) of Act involves exercise of judicial power

2. (2) court permitted to hear submissions in proceedings under s 430(2) of Act

THE COURT:

(REVISED FROM THE TRANSCRIPT)

1 The Court is mindful that these proceedings potentially involve the liberty of the subject. We have had the benefit of comprehensive written and oral submissions on the jurisdictional questions as to how the Full Court is to exercise its jurisdiction and powers under s 430(2) of theCrimes Act 1900 (ACT). It is appropriate that we give brief reasons immediately as to the views that we have formed so that the matter may proceed.

Background

2 On 3 November 1995, David Eastman was found guilty of the murder of the then assistant federal police commissioner, Colin Winchester. Subsequently, the High Court affirmed Mr Eastman's conviction in that trial:Eastman v The Queen 203 CLR 1.

3 On 29 April 2011, Mr Eastman made an application for an inquiry under Part 20 of theCrimes Act in respect of his conviction. A judge of the Court ordered that such an inquiry take place. On 29 May 2014, Martin AJ, who had been appointed to conduct the inquiry, delivered a report to the registrar of the Court pursuant to s 428 of the Crimes Act. In that report, Martin AJ recommended that Mr Eastman's conviction be quashed and that a retrial should not be ordered.

4 Pursuant to s 430(2), the Full Court must have regard to the report and make an order either confirming the conviction, with or without a recommendation that the Executive remit penalties or grant a pardon, or quashing the conviction with or without ordering a new trial. The legislation contains a very difficult and unusual provision in s 431 that, among other things, states that, in considering whether to make an order under Part 20 about a report, the Supreme Court may only have regard to matters stated in the report or documents or things given to the registrar with it, must not hear submissions from anyone, and that consideration of whether to make an order under Part 20 is not a judicial proceeding. The terms of ss 430 And 431 are set out later in these reasons.

5 The Full Court considered that these matters gave rise to real issues as to the nature of its jurisdiction and power that required argument. Where there is an issue concerning its jurisdiction, the first duty of a court is to determine whether it has jurisdiction to deal with the matter and to identify the nature of that jurisdiction and power so as to ensure thatthe Court is acting in accordance with law: R v Ross-Jones; Ex parte Green 156 CLR 185 at 202 per Gibbs CJ with whom Mason J agreed; 213 per Wilson and Dawson JJ.

The Legislative Scheme

6 The construction of s 431 is therefore critical to a precise understanding of how the Court ought proceed. Section 431 must be construed in the context of the legislative scheme of which it forms part. The legislative scheme in Part 20 involves three stages set out in each of Divs 20.2, 20. 3 And 20.4. Relevantly, s 421 has this definition: ‘Full Court means the Supreme Court constituted by a Full Court’.

7 Division 20.2, the first stage, deals with the institution of an application for, and the ordering of, an inquiry. Significantly, s 422(1) prescribes seven necessary preconditions that must be satisfied before an inquiry can be ordered, as follows:

422 Grounds for ordering inquiry

1. (1) An inquiry may be ordered under this part into the conviction of a person for an offence only if —

   1. (a) there is a doubt or question about whether the person is guilty of the offence; and

   2. (b) the doubt or question relates to –

      1. (i) any evidence admitted in a relevant proceeding; or

      2. (ii) any material fact that was not admitted in evidence in a relevant proceeding; and

   3. (c) the doubt or question could not have been properly addressed in a relevant proceeding; and

   4. (d) there is a significant risk that the conviction is unsafe because of the doubt or question; and

   5. (e) the doubt or question cannot now be properly addressed in an appeal against the conviction; and

   6. (f) if an application is made to the Supreme Court for an inquiry in relation to the conviction – an application has not previously been made to the court for an inquiry in relation to the doubt or question; and

   7. (g) it is in the interests of justice for the doubt or question to be considered at an inquiry.

8 The Executive has an independent power under s 423 to order an inquiry on its own initiative, but that power is, no doubt, constrained by the requirements of s 422. Alternatively, the Supreme Court may order an inquiry under s 424. The registrar must give a copy of the application for an inquiry to the Attorney-General, and the Supreme Court may also consider written submissions of the Attorney-General or theDirector of Public Prosecutions or both in relation to the application. Section 424(4) provides that proceedings on such an application are not judicial proceedings. Where the Supreme Court makes an order for an inquiry, the registrar must give a copy of the order to the Attorney-General (s 424(5)). Section 425 emphasises that Div 20.2 does not create any rights of a person to an order for an inquiry or impose any duty to order one, and there is no right of appeal in relation to a decision whether to order an inquiry.

9 Division 20.3 deals with the procedure for the conduct of the inquiry. The inquiry must be constituted by a board, being a judicial officer, namely, either a judge of the Supreme Court or a magistrate, and, subject to variations to the requirements concerning its report, the inquiry is conducted under theInquiries Act 1991 (ACT). After completing an inquiry, the board must give a copy of the written report of the inquiry to the registrar of the Supreme Court under s 428(1). The board must also give the registrar, together with the report, ‘for safe keeping, any documents or things held by the board for the purpose of the inquiry’ (s 428(2)). However the Supreme Court may exercise its powers under Division 20.4 in relation to...