David Harold Eastman v The Hon Kevin Patrick Duggan
[2013] ACTSC 111
•14 May 2013
DAVID HAROLD EASTMAN v THE HON KEVIN PATRICK DUGGAN & Anor
[2013] ACTSC 111 (14 May 2013)
Crimes Act 1900 (ACT) Pt 20, s 427, 475 (repealed)
Inquiries Act 1991 (ACT) s 15
Johnson v Johnson (2000) 201 CLR 488 applied
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 applied
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 applied
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 applied
EX TEMPORE JUDGMENT
No. SC of 142 of 2013
Judge: Rares J
Supreme Court of the ACT
Date: 14 May 2013
IN THE SUPREME COURT OF THE )
) No. SC 142 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DAVID HAROLD EASTMAN
Plaintiff
AND:THE HON KEVIN PATRICK DUGGAN
First Defendant
ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Second Defendant
ORDER
Judge: Rares J
Date: 14 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
The plaintiff pay the second defendant’s costs.
This is an application by David Eastman for a writ of prohibition directed against Duggan AJ seeking to prohibit his Honour from further conducting an inquiry into Mr Eastman’s conviction for the murder of Colin Stanley Winchester, an Assistant Commissioner of the Australian Federal Police.
The legislative scheme
On 3 September 2012, Marshall J ordered that there be an inquiry into Mr Eastman’s conviction pursuant to Pt 20 of the Crimes Act 1900 (ACT). Section 427 provides that once an inquiry is ordered by the Court, the Executive must appoint a board of inquiry under the Inquiries Act 1991 (ACT) that must be constituted by a judge of the Supreme Court or a magistrate (s 427(1) and (3)). Relevantly s 427(4) provides:
“A judge or magistrate who has been involved in any way (whether as judge or magistrate, or in another capacity) in a relevant proceeding in relation to the offence, or any investigation in relation to the acts or omissions alleged to constitute the offence, must not be appointed to constitute the board of inquiry.”
The Inquiries Act provides that a board or, relevantly here, the judge, may appoint a lawyer to assist him, either generally or in relation to a particular matter (s 15).
Factual background
The present issue has arisen in the following way. Duggan AJ was appointed as the board under the Inquiries Act in early September 2012. His Honour is a judge of considerable experience, having served for many years on the Supreme Court of South Australia. Acting under s 15 of the Inquiries Act, Duggan AJ appointed Joseph Kellaway, a barrister, as one of the junior counsel assisting him in the conduct of the inquiry. Mr Kellaway had been a research assistant to Miles AJ in an earlier inquiry under the now repealed provisions of s 475 of the Crimes Act that Miles AJ had conducted into Mr Eastman’s fitness to plead during the whole or any part of this trial (the Miles inquiry).
In his report (the Miles report), Miles AJ expressed his appreciation for the research assistance given to him by Mr Kellaway in the inquiry (at [22]). Miles AJ had directed that for the purposes of the inquiry the Chief Magistrate, or a magistrate nominated by him, hear evidence from all persons likely to give material information on the matter of Mr Eastman’s fitness to plead during the whole or part of his trial. Mr Kellaway acted as the tipstaff of the magistrate who conducted that examination.
Miles AJ concluded in his report that it had not been shown that Mr Eastman was unfit to plead during the whole or any part of his trial. Accordingly, his Honour did not recommend that the Executive take any action to set aside the conviction.
Relevantly, the Miles report found that had the trial judge (Carruthers AJ) been made aware on the morning of 22 May 1995, of the opinions of Mr Eastman’s previous counsel and the medical reports of Dr Hocking and Dr Milton, which were in the possession of the prosecution, it would have been highly likely that Carruthers AJ would have determined that there was a question as to Mr Eastman’s fitness to plead, that arose during the course of his trial. In the end Miles AJ concluded that, although such a question existed, Mr Eastman was fit to plead throughout the trial (see [279]).
The inquiry ordered by Marshall J raised 19 separate terms. The first four of those terms were concerned with the same questions as the Miles inquiry had considered, namely, whether Mr Eastman was fit to plead during the whole or any part of his trial. Those terms raised issues whether Mr Eastman’s trial should have been adjourned by no later than 29 June 1995 because of his fitness at, and in the period leading up to, that time. Term 2 referred to this period in the trial, when Mr Eastman was unrepresented and raised issues whether the prosecution had failed to assist the Court because it:
• alone had been in possession of psychiatric reports made by Dr Milton between February 1989 and September 1990 that had been commissioned by the Australian Federal Police and a letter dated 22 May 1995 to the Territory’s Director of Public Prosecutions from David Lander, a solicitor, that raised Mr Eastman’s fitness; and
• was aware of earlier approaches by Michael Williams QC and the ACT Public Defender that attempted to raise the question of Mr Eastman’s fitness.
Term 16 concerned the same reports by Dr Milton and the opinion he expressed there concerning Mr Eastman’s mental state at the time he was under surveillance. Term 18 raised questions as to whether controversial, and now disputed, evidence that had been called at Mr Eastman’s trial and other relevant evidence that was not called, required review in the context of his mental state at the trial, his fitness to stand trial and “his fragmented legal representation”. Term 19(i) raised the question whether, as a consequence of Mr Eastman’s mental illness, he did not receive a satisfactory trial.
It can be seen that a number of the terms of reference of the present inquiry appear to overlap the substantive issues that were the subject of the Miles inquiry.
The circumstances in which Mr Eastman raised his concerns
In a letter dated 23 November 2012, Liesl Chapman SC wrote to the Territory’s Director of Public Prosecutions advising that she had been asked by Duggan AJ to take on the traditional role of counsel assisting, including taking necessary statements, obtaining all relevant documents and calling witnesses. She advised that Mr Kellaway, whose chambers were in Sydney, had been appointed junior counsel assisting the Board. She requested a copy of all of Dr Milton’s reports in the possession of the Director of Public Prosecutions, a letter of 22 May 1995 and all documents, including notes, that the Director’s office had relating to approaches by Michael Williams QC and the ACT Public Defender that attempted to raise the question of Mr Eastman’s fitness pursuant to term 2 of the current reference.
On 6 December 2012, Mr Eastman wrote a letter seeking a directions hearing of the inquiry to agitate a number of issues, one of which was his concern that Mr Kellaway be replaced as junior counsel assisting by reason of “a serious conflict of interest”.
On 7 December 2012, Mr Kellaway wrote a letter to Ms Chapman. That letter was subsequently tendered before his Honour and read onto the record of the inquiry on 11 December 2012. Mr Kellaway wrote that he was not in possession of any information that was confidential to any party in the present inquiry or in any earlier proceedings involving Mr Eastman and he was unable to identify what the conflict asserted by Mr Eastman might be. Mr Kellaway wrote that he supposed that Mr Eastman had been referring to his role in the Miles inquiry. The letter stated that it was a matter of public record that he was Miles AJ’s research assistant for the purposes of his inquiry, as acknowledged in the Miles report at [22] (see [5] above). He also said that he had been the tipstaff or associate to the Coroner who received depositions for that inquiry.
Mr Kellaway’s letter stated that his duties for the Miles inquiry had comprised collating the tendered depositions, assisting in legal research, ensuring accuracy to details such as the dates of salient events and the like, and liaising between service providers, for example, facilitating the availability of transcripts to the proceedings. He also wrote:
“I became aware of his Honour’s final recommendations to the Executive after he had given them, and they were subsequently published. At no time was I privy to the private contemplations of anybody who had any role in that Inquiry.”
Mr Kellaway said that he had received advice from Senior Counsel on the Bar Council of the New South Wales Bar Association who had advised him that no conflict of interest existed and that he did not hold any privilege or confidence that may be of detriment to any party, so that the Barristers Rules (NSW) would not entitle him to return his brief.
When the matter came before the inquiry on 11 December 2012, Duggan AJ raised with Ms Chapman the foreshadowed application concerning Mr Kellaway. Counsel then appearing for Mr Eastman, Mr O’Donnell, raised one concern that had been entertained previously by Mr Eastman. Mr Eastman had been concerned that Mr Kellaway had been involved in compiling an annexure to Miles AJ’s report that detailed matters that had occurred during the trial and reflected on Mr Eastman’s credibility. Ms Chapman said that she had asked Mr Kellaway about that concern and he had informed her that he had had no involvement in the preparation of that document. Mr O’Donnell responded that if Mr Kellaway, as counsel, believed that he did not have a conflict then he, Mr O’Donnell, could take the matter no further, and it was not appropriate to do so.
Duggan AJ read Mr Kellaway’s letter to Ms Chapman dated 6 December 2012 onto the record of the inquiry, then observed that he thought it was a good idea to have Mr Kellaway’s earlier involvement disclosed, adding:
“I might say that because of his previous involvement in the limited way he described in the letter, namely, contact and the marshalling of documents, he’s been most useful so far to Ms Chapman because he’s found a number of documents, he’s provided us with transcript and he seems to know where the documents relevant to this matter are, and would be useful to all parties, I would have thought, if any of you were looking for a document or assistance in that respect.”
His Honour asked whether Mr O’Donnell persisted with the application concerning Mr Kellaway’s asserted conflict of interest. Mr Donnell responded that he was not persisting with the application and was satisfied with Mr Kellaway’s explanation.
At the beginning of the hearing on 30 January 2013, his Honour disclosed that he had heard the previous day for the first time that it was likely that a Ms Woodward would be called to give evidence in the matter. The judge said that he considered that he should disclose that some years previously he had been on a committee to advise the Chief of the Defence Force in relation to certain applicants for judicial positions on the Australian Military Court. Ms Woodward had been one of the applicants which the committee recommended to the Chief of the Defence Force. Eventually Ms Woodward had been appointed to that institution. However, the High Court subsequently held that the Australian Military Court had not been constituted in accordance with Ch III of the Constitution and, accordingly, was invalid. His Honour said that the only occasion on which he had ever met Ms Woodward was in the committee room when she was interviewed by the committee, but he had wished to disclose that contact in case it gave rise to any concern.
At the hearing of 30 January 2013, Mr John Harris SC appeared for Mr Eastman. Ms Chapman made some submissions early in the course of that hearing. Mr Harris had been counsel assisting in the Miles inquiry. Ms Chapman stated that counsel assisting had been working on the matter for a month or more. She said that her view was that counsel assisting would place much reliance upon material gathered by the Miles inquiry, including affidavit material, the transcript and submissions made by counsel, as well as Miles AJ’s report in relation to terms of reference 1 to 4 that dealt with Mr Eastman’s fitness to plead.
Next, Mr Harris told his Honour that, as he read the transcript, an indication had been given on a previous occasion there was a concern about Mr Kellaway’s position as junior counsel and that his Honour had dealt with it entirely appropriately. Mr Harris then said that the issue Mr Eastman’s representatives now wished to raise had not been expressed quite accurately earlier. He said that there was a concern that it was important the inquiry should not suffer from any reasonable apprehension of bias or unfairness whatsoever, and that it should of course have the confidence of the community. He submitted that, for that reason, Duggan AJ needed to consider whether the issue of apprehension of bias was affected by the engagement of Mr Kellaway as junior counsel, having regard to his previous position as research assistant to Miles AJ in the earlier inquiry.
Mr Harris confirmed, in answer to a question from his Honour, that he was putting the submission on the basis of a perception of bias. Mr Harris explained that the difficulty he was raising was that Mr Kellaway had held a position close to Miles AJ, as his research assistant, and, effectively, as the associate or tipstaff to the magistrate who had collected the evidence. He said that it was difficult for Mr Eastman’s representatives to have any specific knowledge of matters that Mr Kellaway may have shared with Miles AJ, observing that of course those might have been no real substance, but that this was not known. He then put that:
“We all must proceed on that basis of trust and professional proper behaviour. And we understand that Mr Kellaway has quite properly considered the position and quite properly has obtained advice in relation to the matter.”
Mr Harris then confirmed that he was raising the matter at an early stage with Duggan AJ. Mr Harris said that he conceded that was entirely a matter for his Honour, and he accepted the principle in respect of judicial officers, that judges should not disqualify themselves, lightly, on the basis of a claim of apprehended bias. Mr Harris then said that his Honour should not adopt a different approach and continued:
“… of course I also should concede immediately that the submission doesn’t relate to the Board itself, but to junior counsel appearing.”
The judge said that he would revisit the submissions that had been made previously, would consider Mr Harris’s submission and would make a decision at a later stage, but he did not think there was any immediate urgency. Mr Harris confirmed that he did require his Honour to rule on the matter immediately.
The judge came back to the matter at the next hearing on 14 February 2013. He observed that he had discussed Mr Kellaway’s position previously and made a ruling in relation to it, but that Mr Harris had made further submissions asking him to revisit the situation. His Honour referred to Mr Kellaway’s letter dated 7 December 2012 and its contents. The judge said that he had considered Mr Kellaway’s position and the submissions of Mr Harris in relation to the asserted perception of appearance of bias and said:
“… in the circumstances I do not accept that there is any conflict or other reason - bearing in mind his previous limited role - why he should not perform what is, in effect, a limited role in this matter as counsel assisting. I assure you that he will not take part in any discussion with me relating to the merits of the matters with which he was involved in that limited capacity.” (emphasis added)
His Honour then explained that Mr Kellaway’s involvement in the current inquiry to that stage for the most part had been to collate information. That was because he was aware of the existence of a lot of that information, and where material was located, and had been instrumental in facilitating the investigations that were necessary in that regard in the inquiry. And his Honour observed that if Mr Kellaway had a clear conflict or if there was some other reason that would prevent him from appearing he would take account of that. He said that in the circumstances he had decided there was no reason to suggest that Mr Kellaway should withdraw from the matter.
The position prior to 18 April 2013 appears to have been that no further concern had been raised on Mr Eastman’s part about Mr Kellaway or his Honour’s position in relation to the present inquiry. However, that changed on 18 April 2013 when Mr Eastman wrote a submission to the inquiry. That submission was not in evidence but it was referred to in the transcript of the hearing of 22 April 2013 when Mr Eastman appeared for himself. He asked his Honour to disqualify himself. He stated that, in the event that his Honour did not do so, he was preparing to make an application to this Court, namely the present application, that he filed later the same day. Mr Eastman told his Honour that it might save Court time, if there was any possibility that his Honour would disqualify himself, having regard to Mr Eastman’s concerns elaborated in the submissions he had filed on 18 April 2013.
Mr Eastman addressed his Honour on the topic of whether he should disqualify himself, reminding the judge of some of the earlier exchanges in the transcript to which I have referred above. In his oral submissions, Mr Eastman asserted that, although his Honour made a ruling on 14 February 2013 concerning Mr Kellaway’s position, the judge had not dealt with any issue concerning an apprehension that his Honour was possibly biased. Mr Eastman submitted that by 18 April 2013 some months had gone by. Mr Eastman’s submission then fixed on the words “or other reason” in his Honour’s ruling on 14 February 2013 (see [25]) above). He asserted that those words were a reference to a submission that his Honour should disqualify himself and not just Mr Kellaway.
The judge responded that Mr Harris had not asked him to disqualify himself, and had made submissions concerning only Mr Kellaway’s continued involvement. His Honour stated that he had ruled that Mr Kellaway did not have a conflict or other reason why he should not continue to perform his role as counsel assisting and continued:
“The words “or other reason” were in relation to Mr Harris’s submission that, in effect, if we continued with Mr Kellaway there would be an apprehension of bias on my part, but I was not asked to disqualify myself.”
Mr Eastman noted that he wished to file his application in the Supreme Court that day but suggested that his Honour make a ruling in light of his submissions. He contended to his Honour that Mr Harris’ earlier submissions clearly raised his Honour’s position in relation to a fair minded person being able to form an apprehension that his Honour might be biased. Mr Eastman submitted that his Honour ought to have considered his own position in continuing with the inquiry, although he accepted that Mr Harris had never put a submission directly that his Honour disqualify himself.
The judge gave Mr Eastman leave to withdraw so that he could pursue his attempt to file his application in this court, which he did. Counsel assisting them made submissions in respect of Mr Eastman’s application. She stated that at that point there were three counsel assisting. She said that Mr Kellaway was not focusing on terms of reference 1 to 4 and that she and Ms Barnes were undertaking the work on those terms of reference. She said that Mr Kellaway was working on terms 14 to 17 at that time. As I have noted above, term 16 clearly raised the issue of Dr Milton’s reports that were also the subject of terms 1 to 4 relating to Mr Eastman’s fitness to plead.
His Honour then said that Mr Kellaway:
“...certainly wouldn’t be having any discussion with me, either formally or informally, in relation to those terms of reference.”
The judge said that he had made that clear in what he had previously said.
Ms Chapman said that she had transferred Mr Kellaway to work on other terms of reference purely for the sake of dividing work appropriately between counsel assisting, and noted what he had written in his letter of 7 December 2012 to her. She said that she could confirm that Mr Kellaway had had limited contact up to about the first week of February 2013 with her about terms of reference 1 to 4 , and that the position thereafter was as she had stated.
The ruling by Duggan AJ on 22 April 2013
His Honour made a ruling refusing to disqualify himself on the ground of a perception of bias that Mr Eastman had put. He referred to the test identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at 492 [11]. Their Honours said there that in determining whether a judge is disqualified by reason of the appearance of bias (that in that case had been said to take the form of prejudgment) the test was whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge was required to decide.
Duggan AJ referred to the previous discussion of Mr Kellaway’s position in the Miles inquiry and the role that he had played as research assistant to Miles AJ, and tipstaff or associate to the magistrate assisting in that inquiry. His Honour said that on the earlier occasions he had not accepted that there was a conflict or other reason why Mr Kellaway should not perform the role to which he had been appointed as counsel assisting his inquiry. His Honour noted the limited role that Mr Kellaway had had in the previous inquiry and the fact that he had taken no part in the formulation of the final recommendations in the report that Miles AJ made. His Honour then set out Mr Eastman’s submission in the following terms:
“I come to the next matter, which Mr Eastman has argued and which is set out in the third paragraph of his written submissions …:
“This perception has been intensified due to the way in which his Honour proposes to conduct the present Inquiry. I refer to the comments of Senior Counsel Assisting on 30 January 2013, when she said, ‘The reason being that the Miles Inquiry gathered a lot of information on the issue of fitness, both in terms of affidavits and took evidence, and I would expect that we will be heavily relying on that work.”
Mr Eastman went on:
“Although this may be a sensible, labour saving approach in itself, in combination with the appointment of Mr Kellaway it creates a perception that his honour may be biased in favour of arriving at the same conclusions as the Miles Inquiry.”” (original italic emphasis)
The judge said that when Ms Chapman referred to the heavy reliance on the work of the Miles inquiry during her submissions on 30 January 2013, she had clearly referred to the material collected by that inquiry and not the reasons and conclusions of Miles AJ in his report. He observed that there was no reason why the present inquiry should not have regard to the material collected by the Miles inquiry. Duggan AJ referred to considerable extra expense involved were any other course taken. His Honour said that resort by him to the primary material in the earlier inquiry could not give rise to an issue of bias, and continued:
“As for the conclusions reached by Miles AJ, it is trite to say that I am not bound by them. I am required to form my own opinion in relation to the terms of reference of the present Inquiry. I may have to deal with some matters dealt with by Miles AJ. After having regard to all the material put before me in the present Inquiry, I may or may not agree with the conclusions reached by Miles AJ on those matters. However, I repeat; I must exercise on my own independent judgment and not on the fact that Miles AJ happen [sic] to reach certain conclusions of his own.”
His Honour, accordingly, rejected the argument that he should withdraw from the inquiry because of Mr Eastman’s submission quoted above. He also rejected a further submission by Mr Eastman that the approach that his Honour had taken disclosing his previous involvement with Ms Woodward as a potential witness and his approach in relation to Mr Kellaway was indicative of any perception of bias.
His Honour then observed that the recording of evidence and presentation of arguments by his inquiry could not take place until counsel assisting had collected together all the material to be presented and distributed to other counsel. He observed that the collection of material on the 19 terms of reference had proved to be an onerous and time consuming process. Duggan AJ said that the subject matter of the inquiry, namely Assistant Commissioner Winchester’s murder, was an event that had occurred 24 years ago and that Mr Eastman’s trial had commenced about 18 years ago. He said that the inquiry was not one in which counsel assisting had been presented with a complete brief of evidence, that witnesses had to be interviewed and scientific tests undertaken, as well as that extensive material in the Australian Federal Police investigation had to be collated and reviewed. His Honour said that task had to be carried out thoroughly. Duggan AJ said that it would be quite unwise for the inquiry to commence its main sittings without that groundwork being laid, and for all counsel to be given proper warning of the material to be placed before the inquiry.
Duggan AJ said that the time required to resolve various issues associated with the representation of Mr Eastman had also been considerable, but that his Honour had attempted to utilise the time while the work to which he had referred was going on by reading and noting the relevant evidence pertinent to the terms of reference in material background matters. He observed that there were almost 7,000 pages of trial evidence and that, while not all of it was relevant to the present inquiry, a good deal of it was. He said that it was necessary for him to read that material, in order to acquire sufficient knowledge of the background of the case, in order to determine it properly, as well as directing attention to specific aspects of the evidence relevant to the terms of reference.
His Honour concluded that there was nothing in the circumstances put forward in Mr Eastman’s application to support his assertion of apprehended bias and, accordingly, rejected the application.
Yesterday the Territory Government Solicitor wrote to the Registrar of the Supreme Court advising that his Honour had communicated that Mr Kellaway had advised Ms Chapman that he wished to return his brief for personal reasons unconnected with the present application. That letter was provided to Mr Eastman and to the Court at a hearing of an unrelated matter yesterday.
Mr Eastman’s submissions
Mr Eastman argued that although s 427(4) of the Crimes Act was applicable, in terms, directly to the judicial officer who constituted the board or part of the board of inquiry, the section could also be read as identifying a preclusive effect for those who assisted the board as lawyers appointed under s 15 of the Inquiries Act. He argued that Mr Kellaway was a person with a substantial prior history of association with the Miles inquiry who had been chosen by Duggan AJ. He submitted that in the circumstances Duggan AJ’s choice of Mr Kellaway as a counsel assisting his inquiry of itself would raise a reasonable apprehension in the mind of a fair minded lay observer that Duggan AJ might not bring an impartial and unprejudiced mind to the resolution of the subject matter of the inquiry. Mr Eastman referred to the fact that senior counsel assisting had submitted that heavy reliance would be placed on the material previously obtained for the purpose of the Miles inquiry. He argued that, in the circumstances, that was an additional reason why a judge in Duggan AJ’s position, conducting the present inquiry, had to maintain both the reality and the perception of complete independence from what had taken place in the Miles inquiry.
Mr Eastman also contended that Mr Kellaway’s appointment led to the conclusion that a fair minded observer would have to entertain an apprehension of bias by Duggan AJ in the present inquiry. He argued that Mr Harris’s application on 30 January 2013 had raised the need for his Honour to disqualify himself, and that his Honour had been evasive in not responding to that submission directly. Mr Eastman noted that on 14 February 2013 his Honour had given no reasons as to whether he perceived himself to be biased, and that that again was, so he argued, evasive. He contended that Duggan AJ should never have appointed Mr Kellaway in the first place and that his Honour’s subsequent failures to disqualify himself raised or confirmed what a fair minded person might perceive to be bias on his Honour’s part. Mr Eastman argued that his Honour’s choice of Mr Kellaway in the circumstances of his prior involvement with Miles inquiry required an explanation by Duggan AJ, and that no explanation had been given.
During the course of oral argument Mr Eastman speculated as to whether Duggan AJ might want to enquire of Mr Kellaway about what Miles AJ had meant in parts of his report, observing that he, Mr Eastman, had found some passages in the report difficult to understand, despite having read them many times and been familiar with the subject matter. He argued that it was not sufficient for Duggan AJ to say that he would act independently and on the evidence, as one would expect a judge to do, in all of the circumstances. Mr Eastman submitted that the fair minded observer would not be certain that any quarantining of Mr Kellaway’s role would be complete, and that his continued involvement in relation to term 16, which concerned Dr Milton’s reports that were also the subject of the fitness to plead inquiry, confirmed his concerns.
He said that he had not waived any rights to object to Duggan AJ’s failure to disqualify himself earlier, even though he had previously not made such an application directly. He said that because Mr Kellaway had worked, until just recently, for about six months on the subject matter of the inquiry, there could be a predisposition in the way in which evidence for this inquiry would be collected, and the issues to which the enquiries and collection of evidence had been directed. Despite those submissions, Mr Eastman argued that if his application to disqualify Duggan AJ succeeded, it would not disrupt the ability of a subsequent appointee to conduct to the inquiry to continue smoothly with the inquiry’s work.
Consideration
Although the function which Duggan AJ is undertaking in the inquiry is not a judicial function, it is a function that s 427(3) requires be undertaken by a judicial officer. The inquiry is in relation to one of the most serious crimes known to the law: murder. It is an inquiry in relation to a particularly serious crime, being the murder of an Assistant Commissioner of the Australian Federal Police.
I am of opinion that a fair minded person would expect that his Honour will conduct the inquiry as any judge should do, with the impartiality, complete independence and fairness that a judge ordinarily would bring to bear on any judicial or quasi-judicial function he or she performs. The question that must be decided in the present case should be approached on the stricter test of whether or not the circumstances have given rise to an apprehension of bias on the part of his Honour acting as a judge (because of the requirement of s 427(3)) as opposed to any less stringent test that might be applied in relation to whether an administrative tribunal might be perceived to be biased.
Both parties proceeded on the basis that the tests applicable to disqualification of judges, rather than administrative officials, were the relevant test here, and I consider that that is a correct approach. However, I am mindful that his Honour’s role is strictly an administrative, and not judicial, one. Mr Eastman has not suggested that his Honour is actually biased, and has been very careful and appropriate in confining his submissions to there being only an appearance of bias that affects Duggan AJ’s continuance in office.
In such cases, the governing principle is that a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle is subject to qualifications relating to waiver or necessity, but those are not relevant here. That governing principle gives effect to the requirement that justice should be both done and seen to be done. That requirement reflects the fundamental importance of the principle that a judge or court be independent and impartial: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 to 345 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Their Honours said that the apprehension of bias principle can be seen to have its justification in the important basic principle that the judge or tribunal be independent and impartial. The principle is applied to disqualify the judge or tribunal in cases where an appearance of departure from independence and impartiality arises. This is because such an appearance cannot be allowed to affect the proceedings concerned since its effect is capable of undermining public confidence in the independence and integrity of the Court or the judicial system. Their Honours said that in arriving at a decision whether a judicial officer might not bring an impartial mind to the resolution of the question that has to be determined does not require the Court to make any prediction about how the judge concerned would in fact approach the matter. The question, they said, was one of possibility, real and not remote; not probability. They also adverted to the possibility of human frailty as affecting the apprehension of bias principle.
Gleeson CJ, McHugh, Gummow and Hayne JJ also said that the principle, in its application, required the Court to take two steps, namely to identify, first, what was said might lead a judge to decide a case other than on its legal and factual merits and, secondly, and just as importantly, the logical connection between that matter and the feared deviation from the course of deciding the case on its merits had to be articulated (205 CLR at 345 [7]-[8]).
In Johnson 201 CLR at 493 [12]-[13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ explained that the test postulated by the law was what the hypothetical reasonable, or fair minded, observer of a judge’s conduct might reasonably apprehend. This was in order to emphasise that that test was objective and founded in the need for public confidence in the judiciary, and was not simply based on the assessment by some judges of the capacity or performance of their colleagues. They said:
“At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial” [Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585, per Toohey J).”
Their Honours continued that the hypothetical observer is not assumed to have detailed knowledge of the law or the character or ability of the particular judge. The reasonableness of any suggested apprehension of bias must be considered in the context of ordinary judicial practice.
Underlying the importance of the principle of the appearance of independence and impartiality is the fundamental notion that our society expects judges and the work they do in their official capacities to be the product of fair, impartial decision making according to law. The principle that a judge who is actually, or apparently, biased should not decide a matter is one of the fundamental principles of natural justice or procedural fairness.
Those principles are not found in a fixed body of rules applicable inflexibly at all times and in all circumstances as Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ held in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553. They went on to say:
“Tucker LJ said in Russell v Duke of Norfolk ([1949] 1 All ER 109 at p 118]:
“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.”
This passage was approved by the Privy Council in University of Ceylon v Fernando [[1960] 1 WLR 223; [1960] 1 All ER 631], and was used by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) 113 CLR 475 at p 504]. There his Honour observed:
“What the law requires in the discharge of a quasi-judicial function is judicial fairness.… What is fair in a given situation depends upon the circumstances.”
…
Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.” (emphasis added)
In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263, Barwick CJ, Gibbs, Stephen and Mason JJ reaffirmed the principle that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might reasonably suspect that he or she was not unprejudiced and impartial, and that if, in such circumstances, the judge did sit, a writ of prohibition would lie. They said that the law was that (at 136 CLR at 259:
“… in Metropolitan Properties Co. (F.G.C.) Ltd v Lannon [[1969] 1 QB 577] the Court of Appeal again considered this question and did not accept the statement of the law in those two decisions. Lord Denning MR commenced his discussion by citing the oft-repeated saying of Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy [[1924] 1 KB 256 at p 259]: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” After saying that he stood by that principle, Lord Denning MR continued [[1969] 1 QB at p 599]:
“… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. … Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough … There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”” (emphasis added)
French CJ referred to the four main categories of case in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at 302 [38] as follows:
“There is a variety of ways in which the impartiality of a court may be or may appear to be compromised. Deane J in Webb v The Queen [(1994) 181 CLR 41 at 74] identified four of them as “distinct, though sometimes overlapping, main categories of case”. They were:
•interest – where the judge has an interest in the proceedings, whether pecuniary or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or prejudgment;
•conduct – where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias;
•association – where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings;
•extraneous information – where the judge has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to the apprehension of bias.
These four categories were described in Ebner [(2000) 205 CLR 337 at 349 [24]. See also Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 at 509 [64]]as providing “a convenient frame of reference” albeit not necessarily a comprehensive taxonomy.”
The particular apprehension of bias of which Mr Eastman complains is that his Honour had a direct or indirect relationship, experience or contact with Mr Kellaway as a person who was somehow interested in, or otherwise involved in the proceedings by reason of his former role with the Miles inquiry. It may also be that Mr Eastman is complaining of the third and fourth categories, namely Duggan AJ having some contact with Mr Kellaway as somehow being “a person interested in the proceedings”, or as being able to provide extraneous information so that the judge may obtain some knowledge of prejudicial or inadmissible facts or circumstances by reason of his contact with Mr Kellaway.
In my opinion, the fair minded observer, acting reasonably and with knowledge that Duggan AJ is a professional judge, with the characteristics identified in the passage I have quoted from Johnson 201 CLR at 493 [12], would not form the view that Duggan AJ’s mere appointment of Mr Kellaway to the position of one of the counsel assisting him in his inquiry or the work Mr Kellaway had undertaken to the present time, would give rise an apprehension of bias.
Mr Eastman did not assert that Mr Kellaway’s role in and in relation to the Miles inquiry was not as he described in his correspondence, or his Honour’s discussion of that role as recorded in the transcript of inquiry. Mr Eastman feared that because Mr Kellaway, as a younger person working for a senior figure such as Miles AJ and assisting him with his inquiry may have formed views or come across information that would cause him to in some way influence the course of Duggan AJ’s inquiry and possibly communicate with his Honour some inclination towards Duggan AJ forming the same view as Miles AJ.
In my opinion a fair minded observer, in considering that possibility, would reject it by saying that Duggan AJ was an independent and impartial judge appointed to conduct a fresh inquiry. The fair minded observer would be mindful that an inquiry into the circumstances of Mr Eastman’s trial involved a very large number of events, documents, witnesses and facts that had taken place over a very long course of time. As his Honour observed, in his ruling refusing to disqualify himself, over 7,000 pages of evidence alone at his trial were involved. The Miles inquiry as to Mr Eastman’s fitness to plead in 2005 would undoubtedly have involved extensive evidence and other materials.
The work which Duggan AJ will have to do in the course of the inquiry will require a large amount of evidentiary material to be reviewed and considered. The evidence that Duggan AJ will consider will be that presented openly and transparently in the course of the conduct of his inquiry. All parties and fair minded observers, including Mr Eastman, will know what the judge has been asked to consider. All parties will be able to make submissions about those matters and will be able to ask for such additional or other evidence or inquiries to be made as appear to be appropriate. They will be entitled to expect that Duggan AJ will bring a judicial temperament to impartiality of independence and the consideration of any such application and will, at the end of the inquiry, weigh for himself the evidence and arrive at his own independent and impartial conclusions.
The mere fact that Miles AJ also conducted an inquiry will be a matter that Duggan AJ, as any person conducting such an inquiry, may have to take into account. He will have to consider some of the material considered by, and perhaps some of the findings made by, the Miles inquiry, but will do so independently and form his own conclusion. Judges do this all the time, including when they sit on appeal from decisions of colleagues, such as occurs in all of the Supreme Courts of the States and Territories, the Federal Court and, even occasionally, in the High Court. In those circumstances judges are used to looking afresh at the same material on an appeal or a re-trial and coming to an independent view after seeing the views of other judges, who are their colleagues, that were expressed after careful consideration of the evidence and law before them.
The fair minded observer would know this, and would take into account that Duggan AJ has, as the passage I have cited from Johnson at 201 CLR at 493 [12] emphasises, taken a judicial oath or affirmation to act impartially and in the way a professional judge would be expected to act.
Mr Kellaway’s description of his role as a research assistant and tipstaff during the Miles inquiry has not been challenged. He did not play any role in Miles AJ’s formulation of his conclusions.
In my opinion, the selection of Mr Kellaway to act as junior counsel assisting and his having acted in that role would not cause, a fair minded observer reasonably to perceive that Duggan AJ had brought pre-judgment, or might bring any pre-judgment to the outcome of the present inquiry.
The fair minded observer would think that Duggan AJ will take submissions from all parties, weigh those with the evidence and come to an impartial conclusion. I do not consider that a fair minded person, reasonably would associate or contemplate the appointment of Mr Kellaway by Duggan AJ as counsel assisting as connected or being possibly connected to the formation of a view in his Honour’s mind as to how his inquiry might ultimately report on its terms of reference.
In my opinion, the fair minded observer would not perceive that Mr Kellaway’s appointment would or could affect his Honour’s or the inquiry’s impartiality, independence or integrity.
While I can understand that Mr Eastman may have a concern about that appointment, as he clearly does, and that he sincerely holds that concern, I do not consider that his subjective concern would translate into a similarly-shared reasonable concern by an objective and fair minded observer of the proceedings.
I should also add that if Mr Eastman’s submissions were correct, then in my opinion, as I raised with him, the consequence would be to undo the whole of the work of the present inquiry. I do not consider that, if a fair minded observer could reasonably have apprehended that Duggan AJ might be biased because of Mr Kellaway’s involvement, that such a perception would be dispelled merely because prohibition went against Duggan AJ. If Mr Kellaway were reasonably able to be perceived in any way to have affected the course of the inquiry which, were I to have upheld the submission, he would be capable of being perceived, it would mean that the work that the inquiry had done would be equally questionable. That would cause a significant delay because of the need to reconstitute a new inquiry, engage new counsel assisting and new staff, reformulate the whole of the new inquiry’s approach and for that inquiry to begin completely afresh.
I have made these last observations only to demonstrate that a fair minded person would not ultimately conclude that Mr Kellaway’s involvement, which has now ceased, would be likely to affect the ultimate outcome of an inquiry presided over by a professional judge undertaking his independent role to inquire into and report on the terms of reference concerning Mr Eastman’s conviction.
Conclusion
For these reasons I am of opinion that the application should be dismissed with costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Rares.
Associate:
Date: 12 June 2013
Solicitor for the Plaintiff: The plaintiff appeared for himself
The first defendant filed a submitting appearance
Counsel for the Second Defendant: Ms M Perry QC
Solicitor for the Second Defendant: ACT Government Solicitor
Date of hearing: 14 May 2013
Date of judgment: 14 May 2013
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