David Harold Eastman v The Honourable Justice Anthony James Besanko

[2011] HCASL 79

DAVID HAROLD EASTMAN
v
THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
[2011] HCASL 79
C5/2010

1. The applicant seeks special leave to appeal against the whole of the judgment of the Court of Appeal of the Australian Capital Territory given on 17 August 2010[1].  On that day the Court of Appeal (Penfold, Dowsett and Graham JJ) dismissed the applicant's appeal against the orders of Edmonds J (sitting as an additional judge of the Supreme Court of the Australian Capital Territory)[2] dismissing the applicant's application for orders under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act"). The orders that the applicant had sought related to the refusal by Besanko J (sitting as an additional judge of the Supreme Court of the Australian Capital Territory) to order an inquiry into the applicant's conviction for murder. (It is convenient to refer to the refusal as a "decision" without deciding whether what was done was a "decision" as that word is to be understood for the purposes of the ADJR Act.) The inquiry which the applicant had sought was an inquiry under Pt 20 of the Crimes Act 1900 (ACT) ("the Crimes Act").

   [1]Eastman v Besanko (2010) 244 FLR 262.

   [2]Eastman v Besanko (2009) 223 FLR 109.

2. Because the applicant is unrepresented, his written case was submitted for consideration in accordance with r 41.10 of the High Court Rules 2004. Having regard to the submissions that were made, we directed service of the written case upon the intervener in the proceedings (at first instance and on appeal in the Supreme Court of the Australian Capital Territory), the Australian Capital Territory Attorney‑General, who filed a summary of argument opposing a grant of special leave.

3. Division 20.2 (ss 422‑425) of Pt 20 of the Crimes Act makes provision for how to start an inquiry. An inquiry may be ordered by the Supreme Court "on application by the convicted person, or by someone else on the convicted person's behalf"[3] if the grounds identified in s 422(1) of the Crimes Act are satisfied. The Executive "may order an inquiry on its own initiative"[4]. Section 425 of the Crimes Act provides:

   "(1)This division does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.

   (2)Without limiting subsection (1), there is no right of appeal in relation to a decision whether to order an inquiry."

   [3]s 424(1).

   [4]s 423.

4. The applicant sought review of the decision made by Besanko J on the sole[5] ground that the decision to refuse an inquiry entailed an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power.  At first instance, Edmonds J held[6] that the application for review was not competent but also held[7] that, if it were, it was an application that could not succeed.  The Court of Appeal also concluded[8] that the application for review was not competent.  Dowsett J further concluded[9] that the decision of Besanko J was not shown to be unreasonable.

   [5](2009) 223 FLR 109 at 110 [4].

   [6](2009) 223 FLR 109 at 113 [17].

   [7](2009) 223 FLR 109 at 120 [54].

   [8](2010) 244 FLR 262 at 268 [28] per Penfold J, 283 [93] per Dowsett J, 310 [238] per Graham J.

   [9](2010) 244 FLR 262 at 297 [165].

5. The conclusion reached by Edmonds J, and by Dowsett J in the Court of Appeal, that the decision of Besanko J was not so unreasonable that no reasonable person could have so decided is not attended by doubt. The questions about the alleged intersection between Pt 20 of the Crimes Act and the ADJR Act need not be considered.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application and ordering the applicant to pay the intervener's costs.

K.M. Hayne
7 April 2011 S.M. Crennan