Eastman v DPP (Act)

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J,Heydon J
• Judgment Date: 28 May 2003
• Neutral Citation: [2003] HCA 28,2003-0528 HCA A
• Docket Number: C11/2002
• Date: 28 May 2003

David Harold Eastman

Appellant

and

Director of Public Prosecutions of the Australian Capital Territory & Ors

Respondents

[2003] HCA 28

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

C11/2002

HIGH COURT OF AUSTRALIA

Eastman v Director of Public Prosecutions (ACT)

Administrative law — Injunction and declaration sought to prevent magistrate from conducting an inquiry under s 475 Crimes Act 1900 (ACT) — Whether Supreme Court judge had power to instigate such an inquiry in the circumstances — Whether a doubt as to an accused person's fitness to plead is a doubt as to the ‘guilt’ of that person — Whether ‘guilt’ means ‘guilt as established by the conviction’ or only the occurrence of the acts or omissions that constitute the offence — Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry.

Criminal law — Inquiry after conviction — Inquiry under s 475 Crimes Act 1900 (ACT) instituted — Whether Supreme Court judge had power to instigate such an inquiry in the circumstances — Whether a doubt as to an accused person's fitness to plead is a doubt as to the ‘guilt’ of that person — Whether ‘guilt’ means ‘guilt as established by the conviction’ or only the occurrence of the acts or omissions that constitute the offence — Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry.

Statutes — Interpretation — Provision for inquiry into a suggested doubt or question as to the guilt of a person convicted of a criminal offence — Construction of words of legislation so that all integers operate congruously and harmoniously — Construction by reference to words included and omitted — Construction by reference to legal history of Australian and English progenitors to the subject provision — Construction to give effect to a beneficial, remedial provision — Adoption of a purposive approach to statutory construction.

Words and phrases — ‘guilt’, ‘doubt or question’.

Crimes Act 1900 (ACT), s 475.

Administrative Decisions (Judicial Review) Act 1989 (ACT).

Representation:

D Grace QC with M E Marich for the appellant (instructed by the appellant)

D A Buchanan SC with S J Gageler SC for the first respondent (instructed by the Director of Public Prosecutions (ACT))

J D Harris SC for the second respondent (instructed by Kevin Holmes)

P A Johnson SC with D J C Mossop for the third respondent (instructed by ACT Government Solicitor)

J D Harris SC for the fourth respondent (instructed by the Registrar, ACT Supreme Court)

ORDER

1. Appeal allowed.

2. Set aside orders 4 and 5 made by the Full Court of the Federal Court on 3 July 2002 and, in lieu thereof, order that the appeal from the orders of the Supreme Court of the Australian Capital Territory in proceeding No SC 149 of 2002 dated 3 May 2002 be dismissed.

3. The first respondent to pay the costs of the appellant in this Court.

1 Gleeson CJ. I have had the benefit of reading in draft the judgment of Heydon J. I agree with the orders proposed by his Honour, and with his reasons.

2 McHugh J. Section 475 of the Crimes Act 1900 (ACT) 1 provided that, where a person has been convicted of a crime and ‘any doubt or question arises as to his or her guilt’, a judge of the Supreme Court of the Australian Capital Territory could direct a magistrate to examine all persons likely to give material information on the matter. The question in this appeal is whether s 475 authorised a direction to a magistrate when a question arose as to whether the appellant, David Harold Eastman, was fit to plead to the charge of murder upon which he was convicted.

3 The appeal is brought against an order of the Full Court of the Federal Court of Australia holding that s 475 did not authorise a direction ‘to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman’. A majority of that Court (Whitlam and Gyles JJ, Madgwick J dissenting) held that ‘a doubt or question restricted to fitness of the accused to plead is not a doubt or question as to the guilt of that person.’ 2 That conclusion reflected the argument of the first respondent, the Director of Public Prosecutions of the Australian Capital Territory, that the term ‘guilt’ in s 475 referred to an objective state that existed anterior to the conviction of the prisoner. On that hypothesis, a doubt about the prisoner's fitness to plead to the charge was not relevant to whether the prisoner was in fact guilty of the crime for which he or she was convicted.

4 In my opinion, s 475 was not so limited. It authorised a direction to summon witnesses and to take evidence whenever there was evidence or information that might raise a doubt as to whether the prisoner was rightly convicted according to law or fact.

Statement of the case

5 In November 1995 in the Supreme Court of the Australian Capital Territory, a jury convicted David Harold Eastman of murdering Colin Stanley Winchester, an Assistant Police Commissioner. The Full Court of the Federal Court rejected an appeal by Eastman against his conviction 3. In May 2000, this Court dismissed an appeal by Eastman against the order of the Full Court of the Federal Court 4. The following month Eastman forwarded a ‘Petition’ to the Registrar of the Supreme Court, addressed to the Chief Justice of that Court, seeking a judicial inquiry under s 475 of the Crimes Act 1900. The contents of the petition indicated that one matter on which Eastman wanted a judicial inquiry concerned his fitness to plead to the charge of murder. That was not an issue that he had raised at his trial. Initially, Chief Justice Miles rejected the application. But, on 7 August 2001 after a hearing, the learned Chief Justice acceded to the petition. He said that he proposed ‘to direct the Chief Magistrate, or a Magistrate nominated by him, to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman’.

6 In March 2002, the Director commenced two actions in the Supreme Court. The first sought (1) a declaration that the inquiry Miles CJ had ordered was outside the power conferred by s 475 and (2) an injunction to restrain the second respondent, a magistrate, from conducting it. The second action was brought under the Administrative Decisions (Judicial Review) Act 1989 (ACT). Those proceedings sought an order quashing the decision of the Chief Justice to direct the inquiry. In May 2002, Gray J dismissed both proceedings 5. The Director then appealed to the Full Court of the Federal Court. As I have indicated, a majority of that Court allowed the appeal 6. In November 2002, this Court granted special leave to appeal against the orders of the Full Court.

The construction of s 475

7 The first question in the appeal is whether the term ‘guilt’ in s 475 referred to a state that existed anterior to the conviction of the prisoner, as the Director contends and as the Full Court of the Federal Court found. For once, neither history nor case law throws much light on the question. The terms of the section and the state of the law at the time do, however, throw some light on the mischief at which the section was aimed and what its purpose was.

8 Section 475 was enacted as part of the law of the Australian Capital Territory by s 6 of the Seat of Government Acceptance Act 1909 (Cth). It was taken directly from s 475 of the Crimes Act 1900 (NSW) which in turn re-enacted s 383 of the Criminal Law Amendment Act 1883 (NSW). In 1883 and 1900, there was no common form criminal appeal statute in New South Wales. Because that was so, the circumstances in which a conviction for felony could be challenged for factual errors were limited 7. They became even more limited after the Judicial Committee held in 1867 that the Supreme Court of New South Wales had no power to order a new trial of a charge of felony 8. Against that background, s 475 can be seen as intended to authorise the Executive government to inform itself of possible miscarriages of justice resulting from deficiencies in the evidence adduced at the trial. The section left it to the Executive government to determine whether any actual or suspected miscarriages of justice had occurred. It also left to the discretion of the Executive government what steps should be taken to remedy any actual or suspected miscarriage of justice. The remedies were of course limited and confined to commuting death sentences, granting free and conditional pardons and releasing prisoners on licence.

9 However, the power conferred by s 475 did not extend to investigating every possible miscarriage of justice. It did not, for example, extend to doubts or questions concerning any element of the trial process that might have affected the conviction of the prisoner. That seems to follow inevitably from the direction to the magistrate to ‘summon and examine on oath all persons likely to give material information on the matter suggested.’ The section assumed that evidence might exist that threw doubt on or questioned the prisoner's guilt or culpability. If such evidence might exist, the section authorised the Executive government or a Supreme Court judge to direct a magistrate to investigate the existence and strength of the evidence by summoning persons who might have information concerning the matter that gave rise to the question or doubt. Thus, the section would not have authorised a direction concerning the directions of the trial judge. Those directions were not ‘matters’ upon which it was likely that

any person could ‘give material information’. That does not mean that, in reporting on whether there was such a doubt or question, the judge who directed the calling of witnesses could not evaluate the effect of the inquiry evidence by reference to the strengths or...