Eastman v The Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Judge: Elkaim J
• Judgment Date: 14 October 2019
• Docket Number: File Number: SC 330 of 2015
• Date: 14 October 2019
• Court: Supreme Court of ACT

[2019] ACTSC 280

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Elkaim J

File Number: SC 330 of 2015

David Harold Eastman

(Plaintiff)

and

The Australian Capital Territory

(Defendant)

Representation:

Counsel

L De Ferrari SC with P Tierney (Plaintiff)

P Garrison AM SC with H Younan and D Crowe (Defendant)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Beckett v New South Wales [2013] HCA 17; 248 CLR 432

Commissioner for v Railways (New South Wales) v Cavanough (1935) 53 CLR 220

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189; 274 FLR 255

Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2; 9 ACTLR 178

Hartigan v Treasurer of the Australian Capital Territory [2018] ACTSC 271; 338 FLR 324

In re Smith, 333 S.W.3d 582 (Tex, 2011)

Lee v McGrath [2018] ACTSC 173

Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267

Lewis v Australian Capital Territory [2019] ACTCA 16

Matsoukatidou v Yarra Ranges Council [2017] VSC 61; 51 VR 624

Maxwell v Murphy (1957) 96 CLR 261

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

Morro and Ors v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78

Nudd v The Queen [2006] HCA 9; 225 ALR 161

R (on the application of Adams) (FC) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48

R (on the application of Hallam) v Secretary of State for Justice; R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2

Robertson v City of Nunawading [1973] VR 819

Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269

Rufo v Simpson, 103 Cal Rptr 2d 492 (Ct App, 2001)

Sharon Rufo v Orenthal James Simpson et al, Frederic Goldman et al v Orenthal James, Louis H. Brown et al v Orenthal James Simpson, Cal Super Ct, SC031947, SC036340, SC036876, 2 October 1997

Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134

Tankleff v State of New York (NY Ct Cl, No 2013–045–038, 27 November 2013)

Wotton & Ors v Queensland & Anor [2016] FCA 1457; 352 ALR 146

Legislation Cited:

Court of Claims Act (NY Consolidated Law) § 8-B

Court Procedures Rules 2006 (ACT) r 1619

Crimes Act 1900 (ACT) ss 424(1), 430

Criminal Justice Act 1988 (UK) ss 5A, 133

Financial Management Act 1996 (ACT) s 130

Human Rights Act 2004 (ACT) ss 18, 23, 31

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14(6)

Legislation Act 2001 (ACT) s 142

Supreme Court Act 1993 (ACT) s 20

New Zealand Bill of Rights Act 1990 (NZ)

Texts Cited:

Australia's declarations and reservations deposited 13 August 1980, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 1197 UNTS 411 (entered into force 13 November 1980) art 14

Christine E. Sheehy, ‘Compensation for Wrongful Conviction in New Zealand’ (1999) 2 Auckland University Law Review 977

Collins English Dictionary (online at 10 October 2019)

Ministry of Justice (NZ), Compensation for Wrongful Conviction and Imprisonment (Backgrounder, May 2015)

National Registry of Exonerations, Exonerations in 2018 (Report, 9 April 2019)

Oxford English Dictionary (2 ed, 1989)

Rachel Dioso-Villa, ‘Out of Grace: Inequity in Post-exoneration Remedies for Wrongful Conviction’ (2014) 37 University of New South Wales Law Journal 349

Sally Lipscombe and Jacqueline Beard, Miscarriage of justice: compensation schemes (House of Commons Library, SN/HA/2131, 6 March 2015)

CIVIL PROCEDURE — Claim for compensation after plaintiff was convicted and imprisoned for murder in 1995 — conviction was quashed in 2014 — civil proceedings stayed in 2016 — plaintiff re-tried in 2018 — plaintiff acquitted — civil proceedings revived

HUMAN RIGHTS — Miscarriage of Justice — wrongful conviction and unlawful detention — Right to liberty and security of person — Compensation for wrongful conviction

COMPENSATION — QUANTUM — Entitlement to and Assessment of compensation — Right to compensation — act of grace payment — ex gratia payment — public law damages

STATUTES — INTERPRETATION — Human Rights Act 2004 (ACT) s 23 — meaning of ‘reversed’ — whether or not the plaintiff's conviction was reversed — whether or not there was a miscarriage of justice — Financial Management Act 1996 (ACT) — whether or not it provides for the compensation dictated by the Human Rights Act 2004 (ACT)

Decision:

1. Judgment for the plaintiff in the sum of $7,020,000.

2. The defendant is to pay the plaintiff's costs of the proceedings.

Elkaim J

1 The plaintiff seeks compensation from the defendant under ss 18(7) and 23 of the Human Rights Act 2004 (ACT) (the HRA). These sections state:

18(7) Right to liberty and security of person

Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

23 Compensation for wrongful conviction

• (1) This section applies if—

  • (a) anyone is convicted by a final decision of a criminal offence; and

  • (b) the person suffers punishment because of the conviction; and

  • (c) the conviction is reversed, or he or she is pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

• (2) If this section applies, the person has the right to be compensated according to law.

• (3) However, subsection (2) does not apply if it is proved that the nondisclosure of the unknown fact in time is completely or partly the person's own doing.

2 A brief background to the proceedings is as follows:

• (a) On 10 November 1995 the plaintiff was convicted of the murder of Australian Federal Police Assistant Commissioner, Colin Winchester. He was sentenced to life imprisonment without parole and immediately taken into full-time custody.

• (b) On 3 September 2012, the ACT Supreme Court ordered that there be an inquiry into the plaintiff's conviction. The order was made under s 424(1) of the Crimes Act 1900 (ACT).

• (c) The inquiry, conducted by Acting Justice Martin, began on 11 November 2013. It ended on 29 May 2014. The report (the ‘Martin Report’) recommended that the plaintiff's conviction be quashed (Exhibit E, page 447).

• (d) On 22 August 2014 the ACT Full Court quashed the conviction and ordered a new trial pursuant to s 430(2)(d) of the Crimes Act. The plaintiff was released on bail.

• (e) The plaintiff had been in custody for 6,860 days. He was aged 50 when he went to prison and almost 69 when released.

• (f) The plaintiff commenced these (civil) proceedings on 11 September 2015. He seeks compensation arising from his imprisonment between 10 November 1995 and 22 August 2014.

• (g) The civil proceedings were stayed on 30 June 2016 pending the outcome of the second criminal trial.

• (h) The second trial commenced on 18 June 2018. It concluded on 22 November 2018 with the plaintiff's acquittal.

• (i) Consequent upon his acquittal the plaintiff revived his civil proceedings.

The evidence

3 The plaintiff's evidence in the case was made up of the following:

• (a) Oral evidence by the plaintiff.

• (b) A statement by the plaintiff dated 3 June 2019 (Exhibit A).

• (c) A photograph of the plaintiff taken shortly after his release on 22 August 2014 (Exhibit B).

• (d) A chronology (Exhibit C).

• (e) Notices admitting and disputing facts (Exhibit D).

• (f) A “Tender Bundle” containing a selection of documents covering different topics (Exhibit E). The topics included court records, court transcripts, correspondence, assorted reports, medical records, inmate applications and complaints, correspondence with the defendant and the Martin Report.

• (g) A letter from the defendant to the plaintiff's solicitor dated 30 July 2019 together with a draft deed of release (Exhibit F).

• (h) A folder of “Eastman Judgments” (Exhibit G).

4 The defendant relied on an affidavit by Mr Stephen Miners sworn on 15 July 2019 (Exhibit 1). Mr Miners was cross-examined.

5 In general terms the plaintiff's statement concentrated on his years in prison, while his oral evidence was more concerned with the time since his release in August 2014. The plaintiff was not cross-examined. Accordingly I accept his evidence.

6 During his oral evidence the plaintiff said that the matters that had most affected him included the death of his sisters and mother while he was in prison and, now that he was out of prison, the realisation that he had lost the opportunity to be married and have children and to pursue a career. He acknowledged that there were still some prospects for him to have a partner and to work but he said these prospects were slim. The opportunities that he said he had lost would no doubt have been apparent to him as his prison term continued.

7 A number of the documents in Exhibits E and G were objected to on the grounds of relevance. I allowed the tender on the basis that the parties would make submissions on their relevance in final addresses.

8 One matter that I will discuss now is the relevance of the judgments in Exhibit G. They were relied upon to establish certain facts which are recorded in the judgments. In my view these individual facts are not relevant other than as an explanation of the applications and procedures which took place during the plaintiff's incarceration.

9 I agree with the plaintiff's submission that if he is entitled to compensation, it should be compensation for his years in prison and not for any other person simply being in prison. In other words it is appropriate to take into account what was experienced by the plaintiff, which might include delays in various legal processes, as well as the personal experiences that he endured in prison, in assessing compensation. This is to be contrasted with an objective assessment of ‘a person’ spending...