David Harold Eastman v The Australian Capital Territory
[2008] ACTCA 8
•21 April 2008
DAVID HAROLD EASTMAN v THE AUSTRALIAN CAPITAL TERRITORY [2008] ACTCA 8 (21 APRIL 2008)
ADMINISTRATIVE LAW – inquiry under s 475 of the Crimes Act 1900 (ACT) – whether judge's report under s 475 of Crimes Act 1900 (ACT) is reviewable under the ADJR Act 1989 (ACT) – availability of relief under s 34B of the Supreme Court Act 1933 (ACT) – width of the inquiry under s 475 of the Crimes Act 1900 (ACT) – whether the appellant was denied procedural fairness.
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3(1), 3(2), 3(3), 3A(2)
Crimes Act 1900 (ACT) s 475,
Legislation Act 2001 (ACT) s 8
Supreme Court Act 1933 (ACT) ss 34B, 60A
Court Procedures Rules 2006 (ACT) r 5416
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to
Eastman v The Queen (2000) 203 CLR 1 referred to
Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318 referred to
Griffith University v Tang (2005) 221 CLR 99 considered
Edelsten v Health Insurance Commission (1990) 27 FCR 56 referred to
Eastman v The Queen (1997) 76 FCR 9 referred to
Director of Public Prosecutions (ACT) v Eastman (2002) 118 FCR 360 referred to
Sullivan v Department of Transport (1978) 20 ALR 323 referred to
Ross v Costigan(No 2) (1982) 59 FLR 184 referred to
Eastman v Miles [2004] ACTSC 32 referred to
Harold Eastman v the Honourable Jeffrey Allan Miles [2007] ACTSC 27 upheld
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 14-2007
No. SC 853 of 2005
Judges: Moore, Stone and Dowsett JJ
Court of Appeal of the Australian Capital Territory
Date: 21 April 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 14-2007
) No. SC 853 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID HAROLD EASTMAN
Appellant
AND:THE HONOURABLE JEFFREY ALLAN MILES
First Respondent
AND:ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
ORDER
Judges: Moore, Stone and Dowsett JJ
Date: 21 April 2008
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 14-2007
) No. SC 853 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID HAROLD EASTMAN Appellant
AND:THE HONOURABLE JEFFREY ALLAN MILES
First Respondent
AND:THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Judges: Moore, Stone and Dowsett JJ
Date: 21 April 2008
Place: Canberra
REASONS FOR JUDGMENT
MOORE AND STONE JJ:
On 3 November 1995, Mr Eastman, the appellant, was convicted of murder in the Supreme Court of the Australian Capital Territory. He appealed unsuccessfully to a Full Court of the Federal Court (Eastman v The Queen (1997) 76 FCR 9) and then unsuccessfully to the High Court (Eastman v The Queen (2000) 203 CLR 1). In the High Court, a question arose about the appellant's fitness to plead. In one judgment (Kirby J), reference was made to an inquiry under s 475 of the Crimes Act 1900 (ACT) as a possible mechanism for exploring relevant questions about the appellant's fitness to plead. The appellant subsequently petitioned for an inquiry to be held under s 475. After hearing oral submissions, the then Chief Justice of the Supreme Court of the Australian Capital Territory, Miles CJ, concluded that the material before him raised the issue of whether the question of the appellant's fitness to plead arose at his trial, and therefore raised a doubt or question as to his guilt for the purposes of s 475 of the Crimes Act. Steps were taken to initiate the inquiry but the legality of that course was challenged by the Director of Public Prosecutions of the ACT ("DPP"). The challenge was unsuccessful in the Supreme Court, successful before the Full Court of the Federal Court (Director of Public Prosecutions (ACT) v Eastman (2002) 118 FCR 360) but unsuccessful in the High Court (Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318). A magistrate subsequently examined persons on oath for the purpose of the inquiry. Written and oral submissions were then heard by Miles CJ, who by this time was an acting judge, his commission as the Chief Justice of the Supreme Court having expired. In these reasons, his Honour is referred to as Miles CJ whether he held, at the relevant time, the office of Chief Justice or the office of an acting judge.
In a report dated 6 October 2005, Miles CJ concluded that it had not been shown that the appellant was unfit to plead at any stage of his trial nor that there had been any miscarriage of justice in what occurred. The report did not recommend that the Executive take any action to set aside the appellant's conviction. On 22 February 2006, the then Attorney-General of the Australian Capital Territory, Mr Stanhope, wrote to the appellant advising that the Executive had considered the report and was taking no further action.
The appellant then sought to impugn the report in judicial review proceedings in the Supreme Court. His application was dismissed by Lander J on 9 May 2007 (David Harold Eastman v the Honourable Jeffrey Allan Miles [2007] ACTSC 27). This appeal is against that dismissal.
At the hearing of this appeal, counsel for the Attorney-General sought to file in Court a notice of contention seeking to have the order made by the primary judge confirmed on the basis that the appellant’s application under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("ADJR Act") was incompetent because the report of a judge under s 475 of the Crimes Act 1900 (ACT) is not a decision to which the ADJR Act applies. Rule 5416 of the Court Procedure Rules 2006 (ACT) provides that such a notice must be filed “not later than 28 days after the day the notice of appeal is served on the respondent or not later than any further time allowed by the Court of Appeal”. It is not in contention that, absent any further time allowed by this Court, the notice is out of time. At the hearing of the appeal the Court reserved its decision on the question of leave.
In our view, the Attorney-General should be granted the necessary extension of time required for the notice of contention. We are satisfied that both parties have come prepared to argue the point, albeit from different perspectives. Ground 4(a) of Mr Eastman’s notice of appeal, filed on 14 May 2007, asserts that Lander J committed an error of law in holding that:
a judge’s report made under sect. 475(4) of the Crimes Act 1900 (A.C.T.) is not “a decision to which this Act applies” under sect. 3(1) of the ADJR Act 1989 (A.C.T.)
The notice of contention puts forward the opposite view and is pressed by the Attorney-General in an abundance of caution in the light of Lander J’s comment that he did not dismiss the application on this basis. We do not see any injustice in allowing the issue to be properly ventilated from both perspectives.
Accordingly, there are four issues in this appeal. They concern whether the primary judge erred in answering the following questions in the negative. The first is whether the report is amenable to judicial review under the ADJR Act. The second is whether relief might be available under s 34B of the Supreme Court Act 1933 (ACT). The third is whether Miles CJ erred in addressing issues other than whether a question should have arisen at the trial about the appellant’s fitness to plead. The fourth is whether the appellant was denied procedural fairness in the inquiry. Where necessary, a reference will be made to the primary judge's reasons when discussing each issue.
Issue 1: Whether the report is reviewable under the ADJR Act
It is convenient to set out, at this point, s 475 of the Crimes Act, which has since been repealed. At the relevant time, it provided:
(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.
(2) The attendance of every person so summoned may be enforced, and his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or been duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.
(3) Where on such inquiry the character of any person who was a witness on trial is affected thereby, the magistrate shall allow such person to be present, and to examine any witness produced before such magistrate.
(4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the inquiry was directed by him or her, or the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just.
The appellant contended below, and contended on appeal, that the ADJR Act was enlivened because the making of a report under s 475 of the Crimes Act is a reviewable decision having regard, in particular, to s 3A(2) of the ADJR Act. That subsection provides:
(2) If provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for this Act, to be the making of a decision.
Subsection 3A(2) came into effect on 11 January 2006 and replaced the former s 3(3) of the ADJR Act. The former subsection 3(3) of the ADJR Act was in the same form as s 3(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Commonwealth Act") and provided:
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall be taken, for the purposes of this Act, to be the making of a decision.
Justice Lander concluded that there was no material difference between s 3A(2) and the former s 3(3), such that s 3A(2) bears the same construction as the former subsection and the subsection under the Commonwealth Act. His Honour held that the report was not a reviewable decision by virtue of s 3A(2). In this appeal, the Australian Capital Territory has submitted that since s 3(3) was still in effect as at the date of commencement of these proceedings (17 November 2005), s 3(3) is the applicable provision. This appears to be correct, although ultimately is not material as the subsections bear the same meaning.
The appellant submitted that s 475(4) of the Crimes Act requires the Executive to act because it obliges the Executive to dispose of the matter. This is correct and the primary judge may have overstated the position when he said at [72] that the subsection "does not require any decision to be made by the Executive", unless he meant a decision of the type on which the ADJR Act was intended to operate. The subsection does require a decision of sorts in the sense that a decision must be made about the course of action required to discharge the obligation to dispose of the matter. However, the issue is whether the making of the report is a reviewable decision for the purposes of the ADJR Act.
The appellant's primary contention was that the making of the report by Miles CJ was reviewable under the ADJR Act by virtue of the extended definition in s 3(3) of the Act. As the primary judge noted, this issue was also considered by Gray J in Eastman v Miles [2004] ACTSC 32. In that case, Gray J (at [37]) considered the observations of Ellicott J in Ross v Costigan(No 2) (1982) 59 FLR 184 that s 3(3) of the Commonwealth Act contemplates a "provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other" (at 332). Gray J (at [37]) noted that Ellicott J's view had been applied by Northrop and Lockhart JJ in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70 and that in neither case did the enactment provide for the ultimate decision maker to act on the report or recommendation. Justice Gray distinguished the matter before him on the basis that s 475 of the Crimes Act made specific provision for the matter to be disposed of by the Executive, and that the making of a report was therefore a condition precedent to a decision such that s 3(3) applied.
The primary judge expressed disagreement with the conclusion reached by Gray J. Lander J said that s 3A(2) of the ADJR Act had no application to the report of an inquiry under s 475 because such a report was not a condition precedent in the relevant sense. First, it was "not necessarily a condition precedent" to powers that might be exercised by the Executive, and secondly, s 475(4) did not require any decision to be made by the Executive (at [71]). However, his Honour decided not to dismiss the application on this basis. His Honour noted that the intervenor had accepted that Gray J's decision may give rise to an issue estoppel between the parties, and that the intervenor had applied for leave to appeal Gray J's decision out of time, which had been adjourned pending the outcome of the proceedings.
While s 475(4) of the Crimes Act requires a decision of the type just discussed to be made, s 3(3) concerns the making of a report "before a decision is made in the exercise of a power under that enactment or under another law". The expression "another law" means, in context, another enactment or subordinate law. That is because the ADJR Act is centrally concerned with decisions under enactments and subordinate laws. So much is apparent from the definition of "decisions to which this Act applies", which draws on the definition of "enactment", which, in turn, is relevantly defined as an Act or a "subordinate law": see the relevant definitions in s 3(1). The expression "subordinate law" is relevantly defined in s 8 of the Legislation Act 2001 (ACT) as a regulation, rule or by-law. In the result, s 3(3) is concerned with reports leading to decisions made under enactments but extending to decisions made under regulations rules or by-laws. It is tolerably clear that the subsection was intended to encompass reports leading to decisions of the type to which the ADJR Act generally applies. That is, decisions made under enactments. A necessary characteristic of such decisions is that the decision must itself confer, alter or otherwise affect legal rights or obligations, whether new or existing: see Griffith University v Tang (2005) 221 CLR 99 at [89] per Gummow, Callinan and Heydon JJ. Such legal rights and duties must "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": see [80]. In the present case, a decision made by the Executive under s 475(4) does not have that characteristic. It is unnecessary to consider whether such a report is a condition precedent to the disposal of the matter under s 475(4) since it is not a decision of the relevant character. While other powers may be exercised to "dispose of the matter", which may confer, alter or otherwise affect legal rights, the power immediately conferred by the subsection does not. The appellant's case is not assisted by the fact that the Executive could exercise powers under other enactments to dispose of the matter since the enactments conferring such powers do not require a report under s 475(4) to be prepared before a decision is made. Accordingly a report arising from an inquiry under s 475 is not a report to which s 3(3) is directed.
The appellant advanced a subsidiary argument, which does not appear to have been raised below, that the making of the report itself, irrespective of s 3(3), involved "the making of a decision", which is defined in s 3(2)(g) to include the "doing or refusing to do any other act or thing". The expression "the making of a decision" operates on a decision to which the Act applies. In our opinion, the making of a report under s 475(4) is not a decision in the requisite sense because it is not a decision of the requisite character. No legal rights are conferred, altered or otherwise affected by the making of the report. It must follow that the making of the report cannot be "the making of a decision" in s 3(2).
For these reasons, the ADJR Act has no application to the making of a report for the purposes of s 475 of the Crimes Act. Accordingly no error attended the ultimate conclusion of the primary judge that the making of the report was not amenable to review under the ADJR Act. The Attorney-General's notice of contention must be upheld.
Issue 2: Availability of relief under the Supreme Court Act
Before the primary judge, the appellant had also relied on s 34B of the Supreme Court Act seeking the issue of prerogative writs. The appellant had sought firstly, the issue of a writ of certiorari to quash the parts of the report finding that he was fit to plead throughout the trial and that an unresolved issue of fitness had not resulted in a miscarriage of justice. Secondly, he had sought an order in the nature of mandamus referring the matter to Miles CJ for further consideration according to law. The primary judge considered what was said by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 regarding the availability of certiorari. Their Honours in that case distinguished the report in question to a report that "operates as a precondition or as a bar to a cause of action, or as a step in a process capable of altering rights, interests or liabilities" and said that a report or recommendation of the latter kind may be quashed, meaning that its legal effect could be nullified by certiorari. The primary judge concluded that the report was not a report of the latter kind and that certiorari could not be issued. His Honour's reasons were that the section did not require a decision to be made on the report, no power was given to the Executive under s 475(4) to make any decision, and the report had no legal effect and carried no legal consequences; see Lander J’s reasons at [80]. (See above at [9] in relation to the issue of whether s 475 requires a decision to be made on the report)
His Honour next considered whether mandamus would apply. His Honour referred to s 60A of the Supreme Court Act, which empowers a judge who ceases to hold office whilst proceedings are being heard to hear and determine those proceedings. His Honour found that s 60A referred to judicial proceedings and would not include the writing of a report under s 475 of the Crimes Act. The Court could not make an order requiring an Acting Judge to write a report if he was not empowered to do so.
The appellant had also sought, in the alternative to certiorari and mandamus, a declaration, in substance, that Miles CJ should have found as established the question or doubt as to the appellant's guilt, being whether the question of fitness to plead had arisen at his trial, and should have proceeded to recommend the Executive take action to set aside the conviction. The primary judge accepted that although s 34B did not give power to make a declaration, the Court could make a declaration as of right on an application for judicial review. However, the primary judge concluded (at [82]) that a declaration of the kind sought ought not be granted because it would produce no foreseeable consequence, applying Ainsworth v Criminal Justice Commission at 582. His Honour said that the appellant would not be assisted by the making of a declaration that there had been an unresolved question of fitness to plead if prerogative writs did not lie.
Nothing was put by the appellant to impeach the reasoning of the primary judge concerning prerogative or declaratory relief. It appears to us correct. No error attended the primary judge's conclusion that relief was not available under s 34B.
Issues 3 and 4: Scope of the inquiry and the procedural fairness ground
The primary judge, despite concluding that the appellant was not entitled to relief under the ADJR Act or the Supreme Court Act, expressly did not dismiss the application on this ground but went on to consider, as alternative bases for dismissing the application, the substantive issues about which the appellant complained. For completeness, it is appropriate to consider these same issues in the appeal. The first concerns whether an inquiry under s 475 is restricted in the way the appellant contended. It is necessary to describe briefly what the report addressed. Miles CJ considered whether a question arose at the trial about the appellant’s fitness to plead. As his Honour observed, that question did not arise as a matter of historical fact. But it should have. His Honour went on to consider whether, assuming it had arisen, what the evidence then available revealed. His Honour concluded that had it considered the evidence then available, the Mental Health Tribunal would have decided that the appellant was not fit to plead. His Honour went on to conclude that having regard to all the material then before him, the Tribunal would have been wrong in reaching that conclusion. That was because, on all the material then before his Honour, the appellant had been fit to plead at the time the trial commenced and at all times throughout the trial. The appellant contended before the primary judge and on appeal that Miles CJ had no authority to report on whether the appellant had been fit to plead on the material available at the time of the trial or to report on whether the appellant had been fit to plead having regard to all the material before the inquiry. Two reasons were advanced by the appellant. The first was the constraining effect of s 475, having regard to observations of the High Court in Eastman v The Queen (2000) 203 CLR 1 and Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318. The second was the constraining effect of what may be described as the terms of reference for the inquiry.
It is convenient to set out how the inquiry came to be initiated and complaints by the appellant about the terms of reference, both at the beginning of the inquiry and towards its conclusion. Aspects of this history are relevant not only to the point presently being considered, but are also relevant to the appellant's complaint that he was denied procedural fairness.
By letter dated 9 June 2000, the appellant first made a petition for an inquiry to Miles CJ. His Honour at that time decided not to direct an inquiry. Almost a year later, the appellant applied again to Miles CJ referring to "further compelling evidence", which he described in the letter. One aspect of that evidence was a number of medical reports, which were said to support the appellant's claim that he was unfit to plead during some parts of the trial. One of these reports was a psychiatric report of Dr Hugh Jolly, dated 30 January 1998, that was attached to the letter. Miles CJ advised the appellant that he would arrange a preliminary hearing and invited written submissions on the issue of whether Dr Jolly's psychiatric report raised a doubt or question within the meaning of s 475.
A preliminary hearing was held on 12 July 2001. On 7 August 2001, Miles CJ gave "a ruling". Parts of that ruling are set out in the primary judge's reasons at [7] to [9]. His Honour concluded that an inquiry should be directed under s 475 and that the issue that brought the case within s 475 was whether the question of fitness to plead arose at the appellant's trial. His Honour posed the question in his ruling as to whether the inquiry should attempt to look for an answer to the question of whether the appellant was in fact unfit to plead, and if it did, what the consequences would be. His Honour did not attempt to answer these questions, but noted that the inquiry "results in a report to the Executive and nothing more" and that the judge making the inquiry had no power to set aside the conviction. His Honour directed 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 fitness to plead of David Harold Eastman during the whole or any part of his trial" (emphasis added). In a letter of the same date, Miles CJ wrote to the Chief Magistrate of the ACT, which is set out at [11] of the primary judge's reasons. The letter provided, relevantly, as follows:
David Harold Eastman has made application for an Inquiry under s 475 of the Crimes Act 1900 into his conviction for murder on 3 November 1995.
I am of the view that a question or doubt arises as to his guilt. This question is whether the question of fitness to plead arose at his trial.
By letter dated 10 August 2001, the appellant sent a fax addressed to the Court Counsellor at the ACT Magistrates Court, asking that the fax be passed on to the Registrar of the Supreme Court and "to all other interested parties" (Appeal Papers, vol 5, p 1043). The letter covered a number of issues. The following was set out under the heading "Request to clarify scope of sect. 475 inquiry into fitness to plead issue":
Your decision of 7-8-01 is ambiguous. It could be read as requiring the Chief Magistrate to inquire into whether I was actually unfit to plead in 1995. If that was your intention, then you are in error, in my submission. Justice Hayne made it clear in his judgment in the High Court that it is sufficient for there to be a real doubt about fitness to plead, in order to justify quashing the conviction.
Therefore I request you to give a clarificatory direction to the Chief Magistrate.
A letter dated 17 August 2001 from the Registrar of the Supreme Court was faxed to the appellant in prison (Appeal Papers, vol 5, p 1046). Relevantly, the letter provided:
Neither the Chief Justice nor I are able to advise you as to your rights, if any, to appeal from the decision of the Chief Justice to direct an Inquiry under Section 475. The Chief Justice declines to give a clarifying direction to the Chief Magistrate as you have requested.
Twenty-six witnesses gave evidence at the inquiry before the Magistrate between October 2004 and February 2005. The appellant was not among the witnesses summoned by the Magistrate. Hundreds of exhibits were tendered. In March and April 2005, in preparation for the hearing before Miles CJ, written submissions were exchanged between Mr Walmsley SC (on behalf of the appellant), Mr Harris SC as counsel assisting the inquiry and Mr Buchanan SC on behalf of the Crown. Oral submissions were then heard before Miles CJ on 11 and 12 May 2005. On 12 May 2005, the appellant gave brief unsworn evidence before Miles CJ from the witness box and was cross-examined. His Honour made directions that steps be taken to enable the evidence to be treated as a deposition for the purposes of the inquiry.
After final oral submissions, the appellant provided written submissions, dated 19 May 2005, which he said were to supplement the written and oral submissions made on his behalf by Mr Walmsley SC. Under the heading "Scope of the inquiry" appeared the following:
On 10-8-01 I sent you a facs. Asking you to clarify your ambiguous direction to Chief Magistrate Cahill of 7-8-01… By letter to me dated 17-8-01 you declined to give a clarifying direction…
Since then I have proceeded on the assumption that this inquiry was into the issue posited by Justices Callinan, Gaudron, and Hayne (and possible also Kirby): that assumption was never challenged by Counsel Assisting, Counsel for the DPP/Crown, or Special Magistrate Cavanagh, until 5 mins to midnight. Apart from anything else, it would be unfair to me to change the goalposts now. You should refuse to do so.
Moreover, the goalposts are in the right position. The dicta of those High Court judges fully accords with the spirit of sect 428E(1). If a trial judge is not competent to decide fitness to plead contemporaneously, how can a sect 475 judge be competent to decide it a decade in arrears? Technically you have the power to decide it, but it would be utterly inappropriate to do so. Even if the Mental Health Tribunal were empowered to make retrospective decisions (which it is not), it would be inappropriate even for it to do so a decade in arrears. The whole exercise would be too speculative. Hence, if you find an unaddressed question existed in 1995, there is nobody who can answer that question now. The only just remedy now is to quash the conviction.
You should accept as correct the High Court dicta. The issue then boils down to this: - "If the trial judge had known all the evidence gathered by this inquiry, ought he to have been "satisfied", at any time during the trial, pursuant to sect. 428E(1)(c), that there was "a question" as to the accused's fitness to plead?"
I submit that the trial judge must have been so satisfied for the reasons already submitted by Mr Walmsley. The conviction must be quashed.
The first substantive issue raised by the appellant in this aspect of the appeal is whether owing to the scope of s 475, the inquiry and the report were confined to the question of whether a doubt arose concerning the appellant's fitness to plead. If the inquiry should have been limited in this way, it follows that the inquiry and the report should not have addressed the question of whether the appellant had, in fact, been fit to plead. In his submissions, the appellant referred to several passages in a number of judgments, including the decisions of the High Court in Eastman v The Queen and Eastman v Director of Public Prosecutions (ACT). Ultimately, however, the answer to the submissions lies in the reasons for judgment of Heydon J in Eastman v Director of Public Prosecutions (ACT). His Honour gave the reasons of the Court in the sense that five of the remaining six members of the Court agreed with his reasons. It is clear from his Honour's reasons, read as a whole, that he accepted that the inquiry and thus the report could consider and address questions beyond the question of whether a doubt had arisen about the appellant's fitness to plead and could address the question of whether the appellant had, in fact, been fit to plead. This can be illustrated by referring to two parts of his Honour's lengthy reasons. In one section (from [94] to [104]), his Honour dealt with a submission of the DPP that any issue concerning fitness to plead could not be the subject of an inquiry because the remedies available did not cover all contingencies that might arise from such an inquiry. The point was made by the DPP that the Executive could pardon a person wrongly convicted but no obvious remedy was available in relation to a person who may have been unfit to plead. As to this, Heydon J said at [104]:
In view of the range of functions which s 475 inquiries were capable of performing, the fact that a pardon was not well fitted for use in favour of a convicted person found unfit to plead is not decisively against a construction of s 475 that would permit the section to be used to direct an inquiry into unfitness to plead.
Quite plainly, his Honour accepted that in an inquiry under s 475, a finding might be made that a person had been unfit to plead, and the fact that there was no obvious remedy did not mean a narrow approach should be taken to the scope of the section and thus the scope of an inquiry arising under it. Equally plainly, if a finding can be made on the evidence arising in an inquiry that a person had been unfit to plead as a matter of fact, a finding can also be made that a person had been fit to plead as a matter of fact.
A little later in his reasons, his Honour dealt with the question of the significance of an accused person's fitness to plead (at [113] to [118]). His Honour was dealing with an argument of the DPP that s 475 concerned the fundamental issue of guilt or innocence and not arguments about procedures or defaults of a technical kind. His Honour rejected the dichotomy and noted that the essential function of the criminal trial is to minimise the risk that innocent persons will be convicted. His Honour went on to discuss how the question of whether a person was fit to plead or not bore upon that essential function. His Honour said (at [115]-[116]):
If the accused is not fit to plead, the key adversary in a partly adversarial proceeding falls below a minimum level of competence. In this case, if the appellant had been unfit to plead, it would mean that he was incapable of understanding what he had been charged with, or incapable of pleading to the charge, or incapable of exercising rights of jury challenge, or incapable of understanding that the trial was an inquiry into whether or not he did what he was charged with, or incapable of following the course of the proceedings, or incapable of understanding the substantive effect of the evidence given against him, or incapable of deciding what defence to rely on, or incapable of instructing legal representatives, or perhaps incapable of doing any combination of these things. If the appellant had been unfit to plead, there could have been no adequate testing of the Crown case in cross-examination; no adequate process of objection to inadmissible Crown evidence; no adequate process of preventing erroneous rulings by the trial judge; no proper attention given to the defence answer to the Crown case or to any proper case which the defence might have been well advised to advance, whether that answer or case be testimonial, documentary or otherwise; and no proper development of defence submissions.
It is undesirable to give particular instances, by reference to events at the trial of the appellant, of how the alleged unfitness to plead of the appellant might have had an impact on particular aspects of his trial. But when the matter is viewed generally, it is obvious that fitness to plead can have an impact on whether the prosecution has proved guilt and on whether or not the accused was guilty in fact.
(Footnotes omitted)
These observations about what might be determined in an inquiry (to demonstrate whether the criminal trial had performed its essential function) accept that the inquiry will address the question of whether the accused had been unfit to plead. Indeed, his Honour uses the appellant's trial to illustrate, hypothetically, what might have happened if the appellant had been unfit to plead. Necessarily, an inquiry about whether a person was unfit to plead can lead, as it did in this case, to a conclusion that the accused (in this case the appellant) was fit to plead. That conclusion established, in the present case, that the trial had performed its essential function, as described by Heydon J.
If it is accepted, as it must be in view of the judgment of the High Court in Eastman v Director of Public Prosecutions (ACT) that an inquiry under s 475 can consider, and a report can determine, whether, as a matter of fact, the accused was unfit or fit to plead, then the formulation of the question in the ruling of 7 August 2001 should not be viewed at as limiting the scope of the inquiry but rather as initiating an inquiry of the type discussed by Heydon J.
We discern no error in the conclusion of the primary judge that it had been open to Miles CJ to conduct the inquiry and report as he did and, in particular, report on the appellant's actual fitness to plead.
We now turn to consider the question of whether the appellant was denied procedural fairness at the inquiry. The issue as articulated by the appellant was that Miles CJ's direction to the Chief Magistrate was ambiguous, that his Honour failed to clarify that direction despite a request to do so, and that the appellant was therefore placed at a disadvantage and denied fairness. In substance, as the Australian Capital Territory put it, the argument was that the appellant had no notice that Miles CJ might find that the appellant was fit throughout his trial or that an unresolved question of fitness did not result in a miscarriage of justice.
Although the scope of the inquiry remained an unresolved issue until the report was made, the primary judge was correct in concluding that the appellant was not denied procedural fairness in the circumstances. It probably would have been preferable for Miles CJ to have made a ruling about the scope of the inquiry at the latest before final submissions concluded and possibly also to have responded to the appellant's request for clarification of the direction to the magistrate, at least by informing the appellant expressly of the potential scope of the inquiry. However, the issue is whether the procedures adopted were unfair to the appellant, taking into account the statutory framework and all the circumstances of the case.
The submissions made in the inquiry by or on behalf of the appellant were largely confined to the issue of whether there was an unresolved question of the appellant's fitness to plead at his trial. However, both written and oral submissions of the appellant's counsel addressed the matter of what should be the proper scope of the inquiry. These submissions were made after the other parties had provided their submissions, in which both contended for an inquiry wider in scope to that for which the appellant contended. In substance, the submissions made by or on behalf of the appellant were confined to the question of whether any issue had arisen about his fitness to plead at the trial. No submissions were made about whether, in fact, he had been fit to plead. It cannot be inferred that the appellant or his counsel were labouring under a misapprehension that the inquiry was not, at least potentially, wider in scope and that it might address issues beyond whether there was an unresolved question of fitness to plead. As the primary judge noted, both the appellant and his counsel were given the opportunity to make submissions about the proper scope of the inquiry and in fact both did so. They also had the opportunity to make submissions, written and oral, on the issues that would potentially be addressed in the report. In all the circumstances, the appellant and his legal representatives could have been under no misapprehension about what the report might, at least potentially, address.
It is true that Miles CJ declined to give a clarifying direction despite the appellant's request that his Honour do so. The appellant submitted in this appeal that the refusal to give a clarifying direction led him to assume that his understanding of how the inquiry should be confined, as articulated in his request for the clarification, was correct. It is difficult to see how such an assumption could have been made. In Miles CJ's ruling given at the time of making his direction on 7 August 2001, his Honour had posed and not answered the questions as to whether issues of actual unfitness should be the subject of the inquiry. It may be noted that the appellant has not pointed to anything in support of his claim to have held any such assumption, other than the supplementary written submissions provided to Miles CJ after the conclusion of oral submissions. There was nothing in his counsel's written submissions or oral submissions to indicate they had been taken by surprise that the scope of the inquiry was a live issue and had been operating under any such assumption. Nor has anything been pointed to concerning the appellant's or his counsel's involvement at the depositional stage that suggests that a view was taken by them that the inquiry was confined to the issue of whether there was an unresolved question and would not look at actual unfitness.
Even if we accept the appellant's claim that he assumed from Miles CJ's refusal to clarify the direction to the magistrate that the inquiry was confined to the narrow question, this would not necessarily point to a denial of procedural fairness. The only possible period during which the assumption could have operated was prior to the receipt of written submissions from the other parties. The stage of the inquiry affected would be the taking of depositions before the magistrate. The magistrate did not take a deposition from the appellant, who, as noted above at [28], gave evidence at a later stage before Miles CJ on the second day of oral submissions. Even if Miles CJ had clarified the scope or potential scope of the inquiry before the taking of depositions, one may question how this could have affected the appellant or his counsel at the depositional stage in a way that could not have been remedied by the opportunity later afforded to them to make written and oral submissions on the issues, at a time when there could have been no doubt as to what the potential issues were. Furthermore, the evidence given by the appellant was given after written and oral submissions were made, at which time there could have been no doubt about the potential issues that could arise in the inquiry.
In reality, nothing was said or done by Miles CJ at any stage that could sensibly have led the appellant to believe that the report would only address the question of whether there was an unresolved issue about fitness to plead and nothing more. The letter of 7 August 2001 to the Chief Magistrate must be read in the context of the direction made the same day (see [25] above). All indications, especially in the period following the filing of written submissions, were that it was a live issue on which very different positions were taken by the appellant on the one hand, and the other parties, on the other. The appellant and his counsel were given the opportunity to make written and oral submissions on the scope of the inquiry, which both did. Equally, the appellant was given the opportunity to make submissions on the wider issues, which the report might potentially address and, on the views of the other parties, should be addressed. It may be thought that not enough was made by or on behalf of the appellant of the opportunity to make submissions in the inquiry on the wider issues. However, procedural fairness is concerned not with ensuring the appellant in fact presents his best case but in affording him a reasonable opportunity to do so: see, for example, Sullivan v Department of Transport (1978) 20 ALR 323. A reasonable opportunity was afforded in this case. The preferable inference to be drawn is that the appellant deliberately elected not to address the question of whether, in fact, he had been fit to plead.
The appeal should be dismissed with costs.
I certify that the preceding numbered paragraphs one (1) to forty-two (42) are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore and Stone.
Associate:
Date: 21 April 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 14-2007
) No. SC 853 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID HAROLD EASTMAN Appellant
AND:THE HONOURABLE JEFFREY ALLAN MILES
First Respondent
AND:THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Judges: Moore, Stone and Dowsett JJ
Date: 21 April 2008
Place: Canberra
REASONS FOR JUDGMENT
DOWSETT J:
I concur in the reasons prepared by Moore and Stone JJ and in the proposed orders. I wish to add only a few brief comments.
Section 475 placed no express limits upon the content of a report or upon the process to be followed in preparing it. However, in practical terms, the relevant doubt or question and the evidence taken in the course of the inquiry would limit such content. Clearly, the legislature intended that the report assist the Executive in dealing with the relevant doubt or question, particularly in any exercise of the royal prerogative of mercy.
Miles CJ found that there was reason to doubt the appellant’s fitness to plead at his trial, meaning that there was reason to doubt his fitness to instruct lawyers, understand and act on legal advice and otherwise participate in the trial. A person may be unfit to plead for various physical or mental reasons. In the appellant’s case, any concern as to such fitness focussed upon his mental condition. Almost by definition, a person who is unfit to plead by reason of his mental condition will probably be unaware of the problem, or will be unable to explain it to others. For that reason, the trial judge and, at least in a criminal trial, counsel on both sides must be alert to the possibility of such a problem. At some stage, the appellant’s counsel had concerns about the appellant’s fitness to plead. However nothing was done about it. I do not, at this late stage, wish to attribute blame for this.
As the ACT law then stood, it was for the trial judge to decide whether there was a question as to the appellant’s fitness to plead. However, given that the matter was not raised by counsel, his Honour could only have done so if he had, himself, discerned some irregular aspect of the appellant’s conduct or demeanour. It seems that he did not. Had the trial judge identified such a question he would have referred it to the Mental Health Tribunal for determination. That did not occur. The appellant was duly convicted and sentenced.
The appellant had a statutory right of appeal to the Full Court of the Federal Court. It is likely that had the appellant, at the hearing of his appeal, sought to call evidence in order to demonstrate that he had been unfit to plead at his trial, he would have been permitted to do so. If unfitness was demonstrated, his appeal would have been allowed and a new trial ordered. If the evidence demonstrated only that there was a question about such fitness, which question should have been referred to the Mental Health Tribunal, it is again likely that the appeal would have succeeded.
The matter of the appellant’s mental health was raised at the hearing of the appeal. There was medical evidence touching upon that matter, but it did not address the question of his fitness to plead. The appellant did not seek to have his conviction set aside on that ground. The Full Court therefore had no cause to address the question or to exercise its power to receive further evidence concerning it. The appeal was dismissed.
The appellant was given leave to appeal to the High Court. The question of his fitness to plead was fairly raised in that appeal, but there was no evidentiary basis suggesting that he had been unfit to plead at his trial. The High Court has consistently held that it has no power to receive further evidence on such an appeal. As the majority concluded that there was no demonstrated error in the decision below, the appeal was dismissed.
It is generally accepted that statutes conferring a right of appeal confer the right to only one such appeal. I understand that, in other proceedings, the appellant is challenging that understanding. However, assuming its correctness, the appellant was left with recourse to s 475 as his only available avenue of relief.
The history of the procedure prescribed by s 475 was discussed by Heydon J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [64]-[75]. Prior to the introduction of statutory appeals in criminal matters, any doubt concerning a conviction could only be dealt with by exercise of the prerogative of mercy. The s 475 procedure was designed to assist the executive branch in advising the Crown as to such exercise. After the introduction of statutory appeals, the s 475 procedure was retained for use in connection with exercise of the prerogative when all rights of appeal had been exhausted. In recent years the procedure has primarily been used where new evidence has led to, or added strength to, doubts about a conviction.
Section 475 did not empower any judge or court to decide how a doubt or question about a conviction should be resolved. The Executive had that responsibility, it being the body authorized to exercise the prerogative. Reasons of policy militate against empowering a court to reconsider a matter which has already been finally determined in judicial proceedings. Finality is an objective of the judicial system. Experience shows that unhappy litigants frequently exploit any opportunity to re-open proceedings in which they were unsuccessful. Because of the procedural requirements which attend the exercise of judicial power, it is expensive, inconvenient and, generally, pointless for an unsuccessful litigant to be permitted to re-litigate his or her matter. The executive branch is not so encumbered by procedural requirements, or at least it need not be. Further, political, rather than legal, considerations may dictate that a case be reviewed. Such considerations are not the proper concern of the courts.
Just as political considerations may lead to review of a conviction, those considerations may also affect the outcome of any such review. No doubt one relevant consideration will be whether the convicted person has been treated justly and in accordance with law. Another consideration will be the public perception of such treatment and consequential questions concerning public confidence in the criminal justice system. A third consideration is the risk that undue intervention by the executive branch in individual cases will undermine public perceptions of judicial independence and the apolitical quality of the criminal justice system.
The question of doubt formulated by Miles CJ was as to the appellant’s fitness to plead during his trial. Having so formulated the question, his Honour sent the matter to a magistrate for the taking of evidence. He subsequently considered that evidence and prepared his report. The content of the report was necessarily dependent upon his Honour’s views as to how he could assist the Executive in disposing of the matter “justly”. Parties appearing before the magistrate and/or to make submissions to Miles CJ did so in order to advance their particular interests in that overall process. They made decisions as to the extent of their participation on that basis.
The question for the Executive was how to deal with the fact that the appellant’s fitness to plead had not been considered in the way prescribed by law, given that there was no remaining avenue for dealing with it in the courts. That question was to be considered in light of the appellant’s entitlement to justice according to law, the community’s likely perceptions as to whether justice had been done, the need to maintain confidence in the judicial system and the need to refrain from undue interference in the criminal justice process. It is difficult to see any sensible reason for excluding from the s 475 report anything which might assist the Executive in the decision-making process.
For those reasons, and for the reasons given by Moore and Stone JJ, I concur in the proposed orders.
I certify that the preceding numbered paragraphs forty-three (43) to fifty-six (56) are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate:
Date: 21 April 2008
The Appellant appeared in person.
Counsel for the First Respondent: Mr J Harris SC
Solicitor for the First Respondent: Meyer Vandenberg Lawyers
Counsel for the Second Respondent: Mr S J Gageler SC, Mr D J C Mossop
Solicitor for the Second Respondent: ACT Government Solicitor
Date of hearing: 11, 12 and 13 July 2007
Date of judgment: 21 April 2008
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