Eastman v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 25 May 2000
• Neutral Citation: [2000] HCA 29,2000-0525 HCA B
• Docket Number: C5/1997
• Date: 25 May 2000

David Harold Eastman

Applicant

and

The Queen

Respondent

[2000] HCA 29

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

C5/1997

HIGH COURT OF AUSTRALIA

Eastman v The Queen

Constitutional Law (Cth) — Appellate jurisdiction of High Court — Appeal from a federal court — Whether High Court has power to receive new evidence in an appeal from a federal court — Whether power to receive new evidence is different in appeals from federal and state courts.

Constitutional Law (Cth) — Interpretation — Relevance of historical background to Constitution.

Appeals — New evidence — Whether admissible on appeal to High Court.

Criminal Law and Practice — Fitness to plead — Issue not raised at trial — Whether material before appeal court suggested issue of fitness to plead at trial — Whether appeal court under a duty to investigate whether an accused was fit to plead at trial — Whether fundamental failure of trial process.

Words and phrases — ‘appellate jurisdiction’ — ‘appeal’ — ‘fresh evidence’ — ‘fitness to plead’.

Constitution, s 73.

Mental Health (Treatment and Care) Act 1994 (ACT), s 68.

Crimes Act 1900 (ACT), s 428E.

Federal Court of Australia Act 1976 (Cth), s 24.

Representation:

D F Jackson QC with R D Cavanagh and G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 25 March 1999

D F Jackson QC with G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 1 February 2000

T A Game SC with S J Gageler for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 25 March 1999

T A Game SC with R C Refshauge for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 1 February 2000

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 25 March 1999

D Graham QC, Solicitor-General for the State of Victoria with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia) at the hearing on 25 March 1999

ORDER

1. Special leave to appeal granted.

2. Appeal dismissed.

1 Gleeson CJ. The applicant, following a trial in the Supreme Court of the Australian Capital Territory, was convicted of the murder of Colin Stanley Winchester. He was sentenced to imprisonment for life. An appeal to the Full Court of the Federal Court of Australia was unsuccessful 1. The applicant seeks special leave to appeal to this Court.

2 A challenge to the legality of the trial, based upon a claim that the trial judge was not validly appointed, was dealt with separately, and rejected, by this Court 2.

3 The grounds of the present application, as amended, are as follows:

• (1) At his trial, the applicant was unfit to plead. He was unfit to instruct counsel or to defend himself, because of mental illness.

• (2) The Director of Public Prosecutions and Crown Prosecutor knew it was likely that the applicant suffered from mental illness which would render him unfit to plead, to instruct counsel or to defend himself, and should have informed the learned trial judge of the fact.

• (3) Because of the applicant's mental illness and his unfitness to plead, the trial miscarried.

4 None of the above grounds had been argued in the Full Court, and no question as to the applicant's fitness to plead was raised before the trial judge. It will be necessary to make further reference, in due course, to the conduct of the trial and the appeal. For the present, it suffices to say that the grounds of appeal argued in the Full Court were not pursued in this Court, and the grounds sought to be argued in this Court represent a substantial departure from the way in which the trial and the appeal were conducted on behalf of the applicant.

The new evidence

5 At the commencement of the hearing of the application, senior counsel for the applicant sought to read 10 affidavits. Two of the affidavits were sworn by a psychiatrist, Dr White, who expressed opinions concerning the applicant's mental condition, and his fitness to plead. The remaining affidavits were sworn by a number of legal practitioners, and contained evidence as to the conduct of the

applicant in relation to the preparation and conduct of his trial, said to bear upon his fitness to plead.

6 None of this evidence had been before the Full Court. It was objected to by the respondent. The primary ground of objection was that, upon the authority of the decision of this Court in Mickelberg v The Queen3, the Court had no power to receive the further evidence on an appeal, and that it would be futile to grant special leave to appeal on the basis of evidence which would not be admissible on an appeal. The arguments involved in this tender of further evidence, and the respondent's objection, raised a constitutional issue, and a number of Attorneys-General intervened. Senior counsel for the applicant contended that Mickelberg did not stand in the way of his attempt to lead the evidence and that, even if it did, it should be reconsidered, and not followed.

7 There were other objections to the evidence. It was observed that the opinions of Dr White were largely based upon assumptions of fact concerning the applicant which were not shown to be true, and that his evidence included a substantial amount of inadmissible hearsay. It was also foreshadowed that, if the new evidence were admitted, counsel would wish to cross-examine some of the deponents, including Dr White, and would challenge Dr White's opinions.

8 It was decided that the appropriate course was to hear full argument from the parties and interveners upon what might be described as the Mickelberg point. If the evidence were to be rejected on that basis, then it would be unnecessary to deal with other grounds of objection, and no occasion to cross-examine Dr White or any other witness would arise. In that event, the grounds of appeal sought to be raised by the applicant would be considered in the light of the material that was before the Full Court.

9 It is the opinion of a majority of the Court, consisting of Gaudron J, McHugh J, Gummow J, Hayne J and myself, that the respondent's primary objection should be upheld, and that the further evidence upon which the applicant seeks to rely must be rejected. That being so, the evidence will not be received, and it is unnecessary to consider further questions as to the admissibility or cogency of the evidence, or to permit cross-examination.

10 My reasons for joining in the majority opinion on this point are as follows. They are based upon the nature of the jurisdiction which is invoked by an application for special leave to appeal to this Court, and upon a long line of authority, of which Mickelberg is a relatively recent example.

11 The jurisdiction invoked by an application for special leave to appeal is that conferred by s 73 of the Constitution. It is a jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State.

12 In Davies and Cody v The King4, Latham CJ said:

‘This is an application for special leave to appeal by two persons who have been sentenced to death. This court is sitting in this matter as a court of appeal and only as a court of appeal, and is not in this instance exercising original jurisdiction. The only power of the court as a court of appeal is to consider and determine whether the judgment of the court appealed from was right upon the materials before that court.’

13 This proposition, and the corollary, that in the exercise of its jurisdiction under s 73 the Court does not act upon new evidence, was established at an early stage in the Court's history. In 1910, in Ronald v Harper5, an appeal from the Supreme Court of Victoria, there was an attempt to lead evidence for the purpose of showing that evidence given at first instance was perjured. The Court held that it had no power to receive the new evidence. To like effect were the decisions in Scott Fell v Lloyd6, in 1911, and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan7, in 1931. In Grosglik v Grant (No 2)8, in 1947, Latham CJ, Rich, Dixon, McTiernan and Williams JJ said: ‘Fresh evidence cannot be admitted upon appeals to this Court’.

14 Appeals are creatures of statute. It is not uncommon for intermediate appellate courts in Australia, including Courts of Criminal Appeal, to have conferred upon them, by statute, power to receive and act upon evidence which was not before the court of first instance. When such a power is exercised, what is involved is an exercise of original rather than strictly appellate jurisdiction. The relevant statute ordinarily defines the conditions and limits of the exercise of the power. There is no statute which confers such power upon this Court, or which regulates the circumstances in which further evidence might be received. The authorities referred to above do not deny the capacity of Parliament to enact

such legislation, at least in relation to appeals from courts exercising federal jurisdiction, but it has never done so.

15 In Courts of Criminal Appeal which, by statute, are given such power, an opportunity exists for an appellant, who has been convicted of a crime, to seek to demonstrate, by evidence not adduced (and, usually, not...