Director of Public Prosecutions (ACT) v Martin - [2014] ACTSC 104

Director of Public Prosecutions for the Australian Capital Territory v The Honourable

Acting Justice Brian Martin [2014] ACTSC 104 (22 May 2014)

CRIMINAL LAW – inquiry after conviction – decision by Supreme Court to order inquiry
under Part 20 of Crimes Act 1900 (ACT)
ADMINISTRATIVE LAW – competency of application for judicial review of decision to
order inquiry – whether judicial review is precluded by Crimes Act 1900 (ACT), s 425 –
whether a decision to order an inquiry is a reviewable decision under Administrative
Decisions (Judicial Review) Act 1989 (ACT) – whether prerogative relief is available under
Supreme Court Act 1933 (ACT), s 34B – whether Court has power to issue prerogative relief
directed to itself – whether Director of Public Prosecutions has standing to bring application
for judicial review
ADMINISTRATIVE LAW – whether decision to order inquiry was affected by
jurisdictional or other reviewable error – whether criteria in Crimes Act 1900 (ACT), s 422(1)
are jurisdictional facts – whether primary decision-maker failed to take into account
mandatory considerations – whether primary decision-maker misconstrued s 422(1) –
whether primary decision-maker took into account irrelevant considerations – whether
decision was legally unreasonable – whether order is outside that contemplated by Crimes
Act 1900 (ACT), s 424
ADMINISTRATIVE LAW – whether decision by board of inquiry to proceed with inquiry
was affected by jurisdictional or other reviewable error
STATUTORY INTERPRETATION – whether instruments appointing board of inquiry are
valid if primary decision-maker’s order for an inquiry is invalid – whether a decision to order
an inquiry affected by jurisdictional error is valid unless and until set aside
PRACTICE AND PROCEDURE – extension of time – whether time should be extended to
allow application for judicial review – Administrative Decisions (Judicial Review) Act 1989
(ACT), s 10 – Court Procedures Rules 2006 (ACT), r 3557
PRACTICE AND PROCEDURE – joinder of parties – whether joinder is necessary to
enable Court to adjudicate effectively and completely on all issues in dispute – Court
Procedures Rules 2006 (ACT), r 220 – Administrative Decisions (Judicial Review) Act 1989
(ACT), s 12
PRACTICE AND PROCEDURE – discretion to refuse relief – whether relief should be
granted – significant delay in bringing application for judicial review – effect of delay on
third parties – considerable work undertaken by board of inquiry – interests of justice
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 12
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 4A, 5, 10, 12, 17, Sch 1 item
11
Administrative Decisions (Judicial Review) Amendment Act 2013 (ACT)
Court Procedures Rules 2006 (ACT) rr 220, 3553, 3554, 3557, 3558
Crimes Act 1900 (ACT) Part 20 (ss 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431,
432)
Crimes Act 1900 (NSW) s 475
Crimes (Appeal and Review) Act 2001 (NSW) Part 7
Crimes (Sentence Administration) Act 2005 (ACT) ss 313, 314
Director of Public Prosecutions Act 1990 (ACT) s 6
Inquiries Act 1991 (ACT) ss 5, 7, 13, 18, 20, 21, 23, 26
Judiciary Act 1903 (Cth) s 78B
Legislation Act 2001 (ACT) ss 138, 139, 141, 142, 151C

Supreme Court Act 1933 (ACT) ss 3, 34B

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)
(2009) 239 CLR 27
Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200
Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561
Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456
Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cairns Port Authority v Albietz [1995] 2 Qd R 470
Cameron v Cole (1944) 68 CLR 571
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012]
HCA 55
Director of Public Prosecutions v Eastman (2002) 130 A Crim R 58; [2002] ACTSC 35
Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 118
FCR 360
Eastman v Besanko (2009) 223 FLR 109; [2009] ACTSC 10
Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214
CLR 318
Eastman v Marshall (2012) 7 ACTLR 37; [2012] ACTSC 134
Eastman v The Queen (1997) 76 FCR 9
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Fordham and State of Victoria v Evans (1987) 14 FCR 474
George v R [2007] EWCA Crim 2722
Giannarelli v Wraith (1988) 165 CLR 543
Griffith University v Tang (2005) 221 CLR 99
Harrison v Melhem (2008) 72 NSWLR 380
Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1
Jess v Scott (1986) 12 FCR 187
Johns v Australian Securities Commission (1992) 35 FCR 16
Johns v Australian Securities Commission (1992) 35 FCR 146
Johns v Australian Securities Commission (1993) 178 CLR 408
Kazzi v R [2014] NSWCCA 73
Kirk v Industrial Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover
Authority of New South Wales (2010) 239 CLR 531
Lansen v Minister for Environment and Heritage (2008) 174 FCR 14
Love v Attorney-General for the State of New South Wales (1990) 169 CLR 307
Ma v Minister for Immigration and Citizenship [2007] FCAFC 69
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
New South Wales v Kable (2013) 298 ALR 144; [2013] HCA 26
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Patsalis v Attorney General for New South Wales (2013) 303 ALR 568; [2013] NSWCA 343
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2010] FCA 1118
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Pozniak v Minister for Health (1986) 9 ALN 256
Project Blue Sky Inc v Australian Broadcasting Authority (1948) 194 CLR 355
Public Service Association and Professional Officers’ Association Amalgamated Union of

New South Wales v State of New South Wales [2014] NSWCA 116

Public Service Association of South Australia v Federated Clerks’ Union of Australia, South
Australian Branch (1991) 173 CLR 132
R v Collins; Ex parte ACTU Solo Enterprises Pty Ltd (1976) 8 ALR 691
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Re Jarman; Ex Parte Cook (1997) 188 CLR 594
Re Macks; Ex parte Saint (2000) 204 CLR 158
Rondel v Worsley [1969] 1 AC 191
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384
University of New South Wales v Moorhouse (1975) 133 CLR 1
Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30
Wainohu v New South Wales (2011) 243 CLR 181
Wang v Farkas [2014] NSWCA 29

Wedesweiller v Cole (1983) 47 ALR 528

No. SC 436 of 2013

Judges:

Murrell CJ, Katzmann & Wigney JJ

Supreme Court of the ACT

Date:

22 May 2014

IN THE SUPREME COURT OF THE

)

)	No. SC 436 of 2013

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: Director of Public Prosecutions for the
Australian Capital Territory
Plaintiff

AND: The Honourable Acting Justice Brian
Martin

First Defendant

AND: The Supreme Court of the Australian
Capital Territory

Second Defendant

AND: David Harold Eastman

Third Defendant

AND: Australian Capital Territory

Fourth Defendant

O R D E R

Judges:	Murrell CJ, Katzmann & Wigney JJ
Date:	22 May 2014
Place:	Canberra
THE COURT ORDERS THAT:

1.          To the extent that he requires it, the plaintiff be granted an extension of time to bring these proceedings.
2.          Robert Collins Barnes be added as a plaintiff.
3.          The originating application be dismissed.
4.          Costs be reserved.
5.          The parties notify the Court within seven (7) days as to whether they wish to be heard on the question of costs or are content for the Court to make orders to the effect of those foreshadowed in the reasons for judgment.

Table of contents

Background ................................................................................................................................ 1
The application for judicial review ............................................................................................ 2
The relevant statutory provisions ............................................................................................... 4
The alleged errors ...................................................................................................................... 8
Issues ........................................................................................................................................ 11

The previous applications for an inquiry ................................................................................. 13

The 2000 application ............................................................................................................ 13
The 2001 application ............................................................................................................ 13
The 2005 application ............................................................................................................ 15

The current application......................................................................................................... 16

The decisions of the primary decision-maker .......................................................................... 20

10 August 2012 .................................................................................................................... 20

3 September 2012 ................................................................................................................. 23

The inquiry ............................................................................................................................... 25

Is the application competent?................................................................................................... 29

Is judicial review precluded by s 425 of the Crimes Act? ................................................... 29

Is the application under the ADJR Act incompetent? .......................................................... 39

Does the Director have standing to bring the application? ...................................................... 42

Is relief under s 34B of the Supreme Court Act available? .................................................. 45

Should time be extended to permit the Director to seek prerogative relief in relation to the
primary decision-maker’s order? ............................................................................................. 48

The application by Mr Barnes.................................................................................................. 64

Joinder under r 220 ............................................................................................................... 66

Joinder for the purpose of the ADJR Act application .......................................................... 69

Joinder of the ACT................................................................................................................... 72
What is the nature of the s 422(1) gateway? ............................................................................ 73
Did the primary decision-maker fall into jurisdictional or other reviewable error by ordering
the inquiry without determining whether any or all of the preconditions in s 422(1) of the
Crimes Act were made out? ..................................................................................................... 76

Did the primary decision-maker fall into jurisdictional error in other respects? ..................... 83

Did his Honour fail to take into account mandatory considerations or misconstrue s 422(1)?
.............................................................................................................................................. 83
Did his Honour take into account the Director’s attitude to the application and, if so, was
that a reviewable error? ........................................................................................................ 86
Did his Honour fail to take into account that the amended application on its face raised
matters which were incapable of falling within the terms of s 422(1)? ............................... 87
Was the decision manifestly unreasonable? ......................................................................... 90

Is the order for the inquiry outside that contemplated in s 424 of the Crimes Act? ................ 90
Conclusion ............................................................................................................................... 92
The validity of the instruments of appointment ....................................................................... 93
Did Martin AJ fall into jurisdictional error by deciding to proceed with the inquiry without
regard to the limitations of s 422 of the Crimes Act or on the basis that s 422 defines the
scope of the inquiry? .............................................................................................................. 101
What orders, if any, should be made? .................................................................................... 104
Costs ....................................................................................................................................... 108

THE COURT

Background

1.          On 3 November 1995, after a lengthy trial, David Harold Eastman was convicted of the murder of Colin Stanley Winchester, then an Assistant Commissioner of the Australian Federal Police. The following week he was sentenced to life imprisonment. After exhausting his appeal rights, Mr Eastman secured an inquiry into his conviction, though on much more limited terms than he had sought. That inquiry was conducted by Miles CJ. It was an inquiry into Mr Eastman’s fitness to plead. Miles CJ found that Mr Eastman was not unfit to plead throughout or at any time during the trial and that there was no miscarriage of justice resulting from any unresolved question on that subject. Consequently, his Honour did not recommend that the Executive take any action to set aside Mr Eastman’s conviction. Since then, Mr Eastman has fought tirelessly for a new inquiry. His next application was heard and determined by Besanko J. It was unsuccessful. His most recent (“the current application”) is the subject of the present proceeding.
2.          On 6 March 2012 the primary decision-maker (Marshall J) ruled that he had no power to consider the current application because the Crimes Act 1900 (ACT) (“Crimes Act”) only allowed for one inquiry. That decision was set aside by a Full Court on 30 July 2012 and his Honour was directed to consider the application.
3.          On 10 August 2012, at the conclusion of what had been scheduled as a directions hearing, the primary decision-maker ordered that there be an inquiry into Mr Eastman’s conviction. On 3 September 2012 the Director of Public Prosecutions (“Director”) tried in vain to persuade his Honour to reconsider his decision. His Honour did, however, revise his previous order (invoking the slip rule), so as to “limit” the inquiry to the matters set out in Mr Eastman’s amended application. He did so simply by incorporating into the orders the entire contents of the amended application. Consequently, the Executive appointed a board of inquiry (originally constituted by Duggan AJ and, after his Honour recused himself, Martin AJ) and the inquiry began. Then, having failed to persuade both the primary decision-maker and Duggan AJ to do so, the Director asked Martin AJ to confine the limits of the inquiry, again without success.
4.          This proceeding started on 15 November 2013 when the Director filed an application for judicial review of the decisions of the primary decision-maker and Martin AJ. The application challenging the orders made by the primary decision-maker is well out of time, so the Director requires the leave of the Court to bring it.

The application for judicial review

5. The application seeks both prerogative and statutory relief. It is brought under s 34B of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”) and s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (“ADJR Act”). The Director accepts that, as the decision of Martin AJ was made under the Inquiries Act 1991 (ACT) (“Inquiries Act”), it is not reviewable under the ADJR Act: see ADJR Act, Sch 1 item 11.
6.          As well as an order to extend the time for bringing the application, the relief sought includes orders in the nature of certiorari to quash the orders made by the primary decision-maker on both 10 August and 3 September 2012, and the instrument appointing Martin AJ to conduct the inquiry, and prohibition to restrain Martin AJ from continuing to do so pursuant to the primary decision-maker’s “purported order” of 3 September 2012. Before going any further, however, we would note that, if we were to accede to the Director’s application, it would be unnecessary to quash both orders. That is because the effect of the slip rule is to correct the earlier order and “[t]he earlier order as corrected [speaks] by operation of the later order from the earlier date”: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 392. Here, that would mean that it is the order made on 10 August 2012 (as corrected by the order of 3 September 2012) which would have to be quashed.
7.          For the purpose of challenging the instrument of appointment, the Director made a late but successful application to join the Australian Capital Territory (“the ACT”) as a defendant.
8.          The application was opposed by Mr Eastman, the Attorney-General for the ACT, who intervened, and the ACT, itself.
9.          The application was supported by two affidavits sworn by Melissa Kent, a lawyer employed in the office of the Director. The first, sworn on 15 November 2013, contains a summary of the criminal proceedings and the course of the various applications for an inquiry. It also provides a brief explanation for the delay in bringing the application. Exhibited to that affidavit is a large lever-arch folder containing the primary material referred to in the summary. The purpose of the second affidavit, sworn on 27 November 2013, was to put additional documents before the Court.
10. The hearing of the application began on 9 December 2013, following an order for expedition. During the course of the hearing a question was raised which required notice to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). The Court exercised its power under s 78B(2)(c) to sever the constitutional question and to continue to hear evidence and argument about the other matters raised by the application. On 20 February 2014, after the requisite notices had been given, the hearing resumed.

11.        During the adjournment two significant events took place.
12.        First, the Director filed additional evidence. That evidence consisted of an affidavit affirmed by the Director himself, Mr Jonathan White, which provided a more fulsome account of the reasons for the delay.
13.        Second, Robert Collins Barnes, whose conduct is the subject of several of the inquiry’s terms of reference, applied both for leave to intervene and to be added as a party in order to support the Director’s application.

The relevant statutory provisions

14. Inquiries into convictions are governed by Part 20 of the Crimes Act. Part 20 commenced after Mr Eastman’s conviction, but s 432 gives it retrospective operation. Division 20.2 creates a power, but not a duty, to order an inquiry (s 425(1)). The inquiry may be ordered by the Supreme Court on the application of a convicted person or someone on his or her behalf (s 424) or by the Executive on its own initiative (s 423). Proceedings in the Supreme Court on an application are not judicial proceedings (s 424(4)).
15. Section 422 is the provision with which this application is primarily concerned. It is in the following terms:
Grounds for ordering inquiry

(1) An inquiry may be ordered under this part into the conviction of a
person for an offence only if—

(a)

there is a doubt or question about whether the person is guilty of the offence; and
(b) the doubt or question relates to—
(i) any evidence admitted in a relevant proceeding; or
(ii) any material fact that was not admitted in evidence in a

relevant proceeding; and

(c)

the doubt or question could not have been properly addressed in a relevant proceeding; and

(d)

there is a significant risk that the conviction is unsafe because of the doubt or question;

(e)

the doubt or question cannot now be properly addressed in an appeal against the conviction; and

(f)

if an application is made to the Supreme Court for an inquiry in relation to the conviction—an application has not previously been made to the court for an inquiry in relation to the doubt or question; and

(g)

it is in the interests of justice for the doubt or question to be considered at an inquiry.
…

(2) The inquiry is limited to matters stated in the order for the inquiry.
(3) If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.

16. A “relevant proceeding” “in relation to an offence” is defined in s 421 for the purposes of Part 20 to mean:
A prosecution or other proceeding in relation to the offence, including an appeal in relation to the finding of a court in relation to the offence.

17. Section 425 is also material. It provides:
Rights and duties in relation to orders for inquiry

(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.

18. In the event that an inquiry is ordered, the procedure to be followed is prescribed by Division 20.3 of the Crimes Act. Section 426 provides that the Inquiries Act applies, subject to the Division. The Executive is obliged to appoint a board of inquiry under the Inquiries Act (s 427(1)). The inquiry must be stated in the appointment to be in relation to the matter stated in the order and in relation to no other matter (s 427(2)). The board must be constituted by a Supreme Court judge or a magistrate (s 427(3)) who has had no involvement at all in a relevant proceeding in relation to the offence (as defined in s 421) or in any investigation in relation to the acts or omissions alleged to constitute the offence (s 427(4)).
19. Under the Inquiries Act, the board determines the manner in which an inquiry is to be conducted (s 13). The board may conduct hearings (s 21) and may decide the procedure at any hearing (except as otherwise provided in that Act) (s 23).
20. Section 18 of the Inquiries Act provides that the conduct of the inquiry must comply with the rules of natural justice but that the board is not bound by the rules of evidence. It may inform itself as it considers appropriate and may do whatever is necessary or convenient for the fair and prompt conduct of the inquiry.
21. After finishing an inquiry, the board must give a copy of its report to the registrar of the Supreme Court: Crimes Act, s 428(1). The registrar must give a copy of the report to the Attorney-General and the convicted person, together with a copy of any non- disclosure order made by the Supreme Court under s 429(2) of the Crimes Act: Crimes Act, s 429(1).
22. A Full Court of the Supreme Court must then consider the report (Crimes Act, s 430(1)) and, without receiving submissions from anyone, and having regard only to the report and any documents or things given to the registrar with the report (s 431), make one of the following orders:

(a) confirm the conviction; or
(b) confirm the conviction and recommend that the Executive act in relation to the convicted person under either of the following sections of the Crimes (Sentence Administration) Act 2005 (ACT): s 313 (remission of penalties) or s 314 (grant of pardons); or
(c) quash the conviction; or
(d) quash the conviction and order a new trial.
See Crimes Act, s 430(2).
23. Section 430(4) stipulates that subs (2) does not give the convicted person a right to one of the orders mentioned in paragraphs (b), (c) or (d) or to an Executive pardon or remission.
24. Rule 3553(1) of the Court Procedures Rules 2006 (ACT) (“Court Procedures Rules”) provides that the Supreme Court is no longer to issue the prerogative writs of mandamus, prohibition and certiorari. Rule 3554(1) states that the Court continues to have jurisdiction to grant relief by way of these writs, however, if it had that jurisdiction before the commencement of the Rules.
25. Section 34B of the Supreme Court Act 1933 (ACT) (which commenced on 17 December 1993) relevantly provides that this Court has the power to grant relief by way of a prerogative order. “Prerogative order” is defined to mean:
an order the relief under which is in the nature of, and to the same effect as,
relief by way of —

(a) a writ of mandamus, prohibition or certiorari;
…

26. The Court also has the power to grant orders to the same effect under the ADJR Act (s 17(1)).
27. Declaratory relief is available under r 3558 of the Court Procedures Rules and, on the assumption that the ADJR Act applies, also under s 17(1) of that Act.
28. Section 5(1) of the ADJR Act provides that an “eligible person” may apply under the Act for an order of review in relation to a decision to which the Act applies on one or more of the following grounds:

(a)

that a breach of the rules of natural justice happened in relation to the making of the decision;

(b)

that procedures that were required by law to be observed in relation to the making of the decision were not observed;

(c)

that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)

that the decision was not authorised by the enactment under which it was purported to be made;

(e)

that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made;

(f)

that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;

(h)

that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.

29. Section 5(2) provides that the reference in subsection (1)(e) to “an improper exercise of a power” includes a reference to:

(a)

taking an irrelevant consideration into account in the exercise of a power; and

(b)

failing to take a relevant consideration into account in the exercise of a power; and
…

(g)

an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and

(h)

an exercise of a power in such a way that the result of the exercise of the power is uncertain;
…

The alleged errors

30. The Director alleges that the primary decision-maker made the following errors, each of which is said to be a jurisdictional error and also an error of a kind mentioned in s 5 of the ADJR Act:

(1)

failing to ask the correct question by making the decision to order the inquiry without determining whether any or all of the preconditions in s 422(1) of the Crimes Act were satisfied.

For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(c), (f) and (i);

(2) making an error of law in his interpretation of s 422(1) by misconstruing the
preconditions in the subsection.

For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(f);

(3) failing to take into account mandatory relevant considerations, namely:

a. the matters specified in s 422(1)(a), (b), (c), (d) and (f);
b. the grounds specified in the amended application for an inquiry;

c.

the scope of the previous application for an order under s 422 made by Mr Eastman, which was determined by Besanko J; and

d.

the matters previously considered by Miles CJ in his Honour’s inquiry into the conviction.

For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(e) and (2)(b);

(4) taking into account an irrelevant consideration, namely, the statement made on behalf of the Director on 20 August 2012 that he did not oppose the making of an order.
For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(e) and (2)(a);

(5) failing to take into account that, on its face, the amended application raised
matters that were not, and were not capable of being construed as:

(a)

doubts or questions about Mr Eastman’s guilt within the meaning of s 422(1)(a);

(b)

doubts or questions that related to any evidence admitted in a relevant proceeding or any material fact that was not admitted in evidence in a relevant proceeding, within the meaning of s 422(1)(b);

(c)

doubts or questions that could not have been properly addressed in a relevant proceeding, within the meaning of s 422(1)(c); and

(d)

doubts or questions that satisfied the requirements of s 422(1) and which might be the subject of an inquiry pursuant to s 422(2);
For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(e) and (2)(a);

(6) making a decision that was so perverse, irrational and unreasonable that no
reasonable decision-maker could have made it in the circumstances.
For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(e) and (2)(g);

(7) making the decision although the preconditions in s 422(1) were not satisfied.
For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(c); and

(8) making an order of a kind that was not contemplated by ss 422 and 424 of the Crimes Act, as the order did not state the matters in respect of which the inquiry was to be conducted.
For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(c), (d), (e), (f) and (2)(h).
31. Further, the Director alleges that Martin AJ fell into jurisdictional error or error of law on the face of the record, by proceeding with the inquiry in circumstances where the primary decision-maker’s order for the inquiry did not identify doubts or questions within the limits of s 422 of the Crimes Act and where Martin AJ found that the primary decision-maker had made the order for the inquiry without regard to at least one of the jurisdictional preconditions in s 422, namely s 422(1)(f).
32. The Director then alleges that Martin AJ erred in failing to conduct the inquiry on the basis that the scope of the matters to be inquired into was defined by s 422 of the Crimes Act or that the terms of the order for the inquiry were to be construed as subject to a general qualification that the inquiry was to be conducted into the matters specified only to the extent that they came within s 422.
33. Finally, the Director claims that, as the order for an inquiry is invalid, the instrument of appointments appointing Duggan AJ and Martin AJ are also invalid. For the purposes of the ADJR Act application, this is said to be an error of the kind described in s 5(1)(d) and (i).

Issues

34.

The parties agreed that the application raises the following issues:

(1)	Is the application competent?
(2)	Does the Director have standing?

(3) Does s 425(2) of the Crimes Act preclude the Court from reviewing the decisions or purported decisions to order an inquiry?

(4)	Should leave be granted to extend the time for bringing the application?
(5)	What is the nature of the section 422(1) gateway?

(6) Did the primary decision-maker fall into reviewable error by ordering the inquiry without determining whether any or all of the preconditions in s 422(1) of the Crimes Act were made out (ground 1 in the amended application)?

(7)	Alternatively, did the primary decision-maker fall into reviewable error by:

(i) misconstruing s 422(1);
(ii) failing to take into account the mandatory considerations in s 422(1)(a), (d) and (f), the grounds specified in the amended application for an inquiry, the scope of the previous application determined by Besanko J and the matters considered by Miles CJ;
(iii) taking into account and giving considerable weight to an irrelevant consideration, being the Director’s decision that it would not oppose an order for an inquiry;
(iv) failing to take into account that the amended application on its face raised matters that are incapable of falling within the terms of s 422(1);
(v) making a decision that was “perverse, irrational and so unreasonable that no reasonable decision-maker could have reached [it]” (ground 2)?

(8)

Alternatively, did the primary decision-maker lack jurisdiction to make the decision because the preconditions contained in s 422(1) were not made out (ground 3)?

(9)

Is the order outside that contemplated in s 424 of the Crimes Act because it does not state the matters in respect of which the inquiry is to be conducted (ground 4)?

(10)

What is the effect of any reviewable error by the primary decision-maker on the appointment by the Executive of Martin AJ as the board of inquiry and the conduct of the inquiry?

(11)

Did Martin AJ fall into reviewable error by deciding to proceed with the inquiry on 5 and 6 November 2013 without regard to the limitations of s 422 or by failing to conduct the inquiry on the basis that s 422 defines its scope and construing the terms of reference as being subject to s 422 (grounds 5 and 6)?
(12) If the application is successful, what orders, if any, should be made?
35. The application by Mr Barnes raises the additional issue of whether he should be joined.

The previous applications for an inquiry

36. Before dealing with the issues and the decisions in question, it is necessary to provide some context.

The 2000 application

37. On 9 June 2000 Mr Eastman applied to Miles CJ pursuant to s 475 of the Crimes Act (since repealed) for an inquiry into his conviction (“the 2000 application”). Section 475 relevantly provided that 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 someone on the prisoner’s behalf, or a judge of the Supreme Court of his or her own motion could direct a magistrate to summon and examine on oath all persons likely to give material information on that matter.
38. The 2000 application was not accompanied by any supporting evidence and in July 2000 it was rejected.

The 2001 application

39. On 31 May 2001 Mr Eastman made a second application under s 475 of the Crimes Act (“the 2001 application”). This application alleged that:

(a) Mr Eastman was unfit to plead during part of his trial;
(b) The murder was committed by persons associated with organised crime;
(c) The ballistics evidence given at the trial by Robert Barnes was unsafe;

(d)

Utterances that Mr Eastman made, which were recorded on a listening device and tendered at trial, had been made involuntarily and as a result of a campaign of harassment conducted by the Australian Federal Police (“AFP”).
40.        Miles CJ declined to direct an inquiry into the second, third and fourth matters raised in the application. Over opposition from the Director and the Attorney-General, who argued that it did not raise a doubt or question as to his guilt, his Honour ordered an inquiry into Mr Eastman’s fitness to plead “during the whole or any part of his trial”.
41.        Both Mr Eastman and the Director sought judicial review of the Chief Justice’s decision. Mr Eastman’s application was dismissed. The Director’s attempt was also foiled at first instance: see Director of Public Prosecutions v Eastman (2002) 130 A Crim R 58; [2002] ACTSC 35 (Gray J). But on appeal the Director prevailed, a majority of the Court (Madgwick J dissenting) holding that a doubt or question restricted to the fitness of an accused to plead was not a doubt or question as to a prisoner’s guilt within the meaning of s 475: Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 118 FCR 360 (“DPP v Eastman”). The decision of the primary decision-maker was restored, however, after the High Court allowed Mr Eastman’s appeal: Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318. The High Court held that a doubt or question about an accused person’s fitness to plead gives rise to a doubt or question as to a portion of the evidence in the case. McHugh J (Gummow J agreeing) considered that a doubt or question concerning the guilt of a prisoner must inevitably arise if the prisoner was unfit to plead to the charge which resulted in conviction.
42.        Miles CJ then carried out the inquiry. He published his report on 6 October 2005. His Honour concluded (at [277] of his report) that it had not been shown that Mr Eastman was unfit to plead during any part of the trial and made no recommendation that the Executive take any action to set aside the conviction.

The 2005 application

43. Section 475 of the Crimes Act was repealed with effect from 27 September 2001 and replaced by Part 17 (later renumbered Part 20). According to the second reading speech on the bill which introduced Part 17 (the Crimes Legislation Amendment Bill 2001 (ACT)), the new provisions were designed to overcome “gaps and uncertainties” in the operation of s 475, in particular by identifying available outcomes. As we have already said, under the new provisions an inquiry can only be ordered if there is a doubt or question about whether the person is “guilty of the offence” and six additional requirements (set out in what is now s 422) have been met.

44. On 2 February 2005 Mr Eastman applied to the Supreme Court for an inquiry under the new Part 20 (“the 2005 application”). The four grounds upon which he relied may be summarised as follows:
(1) There was a reasonable hypothesis that the murder was committed by individuals connected with organised crime;

(2) There were doubts about the reliability of the evidence Mr Barnes gave about
gunshot residue;
(3) There were doubts about the reliability of the identification evidence given by
Raymond Webb; and
(4) There were doubts about the voluntariness of statements recorded on the listening device because they had been coerced by a campaign of AFP harassment.
45. On 4 April 2008 Besanko J published a 66-page decision, concluding that an inquiry should not be ordered because the preconditions in s 422 were not satisfied.
46. Mr Eastman applied for judicial review of this decision under the ADJR Act, but his application was dismissed: Eastman v Besanko (2009) 223 FLR 109; [2009] ACTSC 10. Mr Eastman appealed but his appeal was also dismissed: Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15. The Court of Appeal held that s 425(1) of the Crimes Act immunised the decision not only from appeal but also from judicial review. Penfold J, with whom Graham J agreed on this point, also held that a decision not to order an inquiry was not a decision made under an enactment because it did not confer, alter or otherwise affect legal rights or obligations.

The current application

47. About eight months later, on 29 April 2011, Mr Eastman made a further application under s 424 of the Crimes Act for an inquiry into his conviction. The basis for this application was that there was a doubt or question about whether the prosecution had neglected its duty to disclose information casting doubt on the veracity and reliability of Mr Barnes, the Crown’s ballistics expert.
48. On 6 June 2011 Mr Eastman supplemented his application and there followed an exchange of submissions. In his submissions the Director argued that none of the requirements of s 422(1) had been made out.
49.        On 15 December 2011 an amended application was filed on Mr Eastman’s behalf. In this application, which also incorporated some submissions, 12 grounds were sought to be added. They begin with “(h)” because the earlier application, though including only one ground, contained seven paragraphs numbered (a)–(g). Those grounds were:

(h)

The trial should have been adjourned no later than 29 June 1995 when material sufficient to raise the question of Mr Eastman’s fitness to stand trial was made on the initiative of the trial judge. At that time the trial was required by law to be adjourned to the ACT Mental Health Tribunal and the trial which continued without the adjournment was a nullity.

(i)

The question of Mr Eastman’s fitness to stand trial was not properly and fully before the High Court and the High Court was “not assisted with the transcript of 29 June 1995”, in particular, pp 2132–3, which were omitted from the nine volumes of appeal books filed by the Director.

(j)

When the question of Mr Eastman’s fitness to plead was raised in the 2001 inquiry before Miles CJ, his Honour was “not assisted by any reference to the proceedings and legal argument” in the trial that took place on 29 June 1995.

(k)

The evidence of Robert Barnes concerning the alleged use by Mr Eastman of a firearm with a silencer attached is “in direct conflict” with the evidence of a witness (Cecil Robin Grieve) who heard the sound of two gunshots at the time of the murder. The witness gave evidence at the inquest into Mr Winchester’s death which culminated in Mr Eastman’s committal for trial but was not called to give evidence at the trial.

(l)

The Director falsely asserted in submissions to Besanko J that no witness heard the fatal shots.

(m)

The gunshot residue evidence central to the prosecution case at the trial is now explained by new evidence inconsistent with Mr Eastman’s guilt. That evidence is to the effect that a friend of Mr Eastman had carried a .22 Brno rifle in the boot of Mr Eastman’s car and the ammunition fired through that rifle included .22 PMC and .22 CCI ammunition. The relevance of this evidence is said to be apparent from the judgment of the Federal Court in Eastman v The Queen (1997) 76 FCR 9 (“Eastman v The Queen”) at 29–31.

(n)

There is “a clear hypothesis contained in the evidence given to the coronial inquest and available contemporaneous police intelligence consistent with the guilt of others” with whom Mr Eastman has no connection. This material includes “the previously considered material in MFI 23 and MFI 130, which must be analysed in the context of other evidence led at the coronial inquest”.

(o)

Evidence which is not factually correct and other evidence which was substantially misleading was led by the prosecution and subsequently went unchallenged, was accepted by the Federal Court as a strong circumstantial case of murder. The evidence was often presented when Mr Eastman was not legally represented.

(p)

Evidence was not led at Mr Eastman’s trial of the circumstances of the first corroborated meeting between Mr Eastman and the witness, Raymond Webb. The statements of those persons who were with Webb at the time support the argument that Webb’s evidence was “recent invention”.

(q)

The transcription of the taped initial conversation between the witness Dr Denis Roantree on 13 January 1989 (MFI 6 at the inquest) was suppressed by the coroner on the application of the AFP. That initial conversation is inconsistent with evidence given by Dr Roantree at Mr Eastman’s trial at a time when he was not legally represented.

(r)

Part of the conversation between Dr Roantree and Mr Eastman was made in the presence of the doctor’s teenage daughter from whom no statement was obtained or produced in evidence.

(s)

An allegedly contemporaneous note of the conversation between Dr Roantree and Mr Eastman was made approximately ten days after the conversation and was inconsistent with the initial account Dr Roantree gave the police.

(t)

Evidence of surveillance tapes of Mr Eastman talking to himself in his home at night was “opened by the prosecution” and led as a voluntary and reliable confession when the prosecution was at all relevant times in possession of a psychiatric reports from Dr Rod Milton, commissioned by the AFP, containing opinions that Mr Eastman should be regarded as psychotic and was possibly on medication for a severe mental disorder.

(u)

“A review of controversial and now disputed evidence called at [Mr Eastman’s] trial and relevant evidence which was not called at the trial has never been made in the context of [Mr Eastman’s] mental state during his trial, has fitness to stand trial and his fragmented legal representation and it is in the interests of justice that these matters are reviewed”.
(v) “As a consequence of:
(i)       the conduct of the prosecution;
(ii)      misconduct by investigating police;
(iii)    the inadequacy of [Mr Eastman’s] defence;
(iv)     the failure of the trial judge to grant appropriate adjournment and oversee the interests of [Mr Eastman] when he was not legally represented; and
(v)      [Mr Eastman’s] mental illness,

[Mr Eastman] did not receive a satisfactory trial and the conviction is unsafe”.
50. At a directions hearing on 13 February 2012 Mr Eastman sought leave to add a further ground (w):
Recent scientific protocols and forensic guidelines call into question evidence of low levels of firearms discharge given at [Mr Eastman]’s trial and the significance which may attach to that evidence.

51. At the same directions hearing the primary decision-maker raised a concern about whether it was open to Mr Eastman to make the current application. He invited submissions on whether s 422(1)(f) of the Crimes Act (“an application has not previously been made to the court for an inquiry in relation to the doubt or question”) precluded the application and said he would deal with the matter as a preliminary issue.

The decisions of the primary decision-maker

52. On 6 March 2012 the primary decision-maker held that the Court had no power to order more than one inquiry into a conviction and, as there had already been an inquiry into Mr Eastman’s conviction, he had no power to consider Mr Eastman’s current application. On 30 July 2012 a Full Court of this Court made orders, amongst other things, requiring his Honour to consider the application, holding that his Honour had misconstrued s 422: Eastman v Marshall (2012) 7 ACTLR 37; [2012] ACTSC 134 (“Eastman v Marshall”).
53. On 6 August 2012 his Honour conducted a directions hearing for the express purpose of “programming” the hearing of Mr Eastman’s application. That hearing was fixed for 3 September 2012. His Honour also directed Mr Eastman to file a further amended application by 13 August 2012.

10 August 2012

54.        On 10 August 2012 his Honour conducted another directions hearing. At this hearing the Director was represented by his Deputy, John Lundy, and Terrence O’Donnell appeared for Mr Eastman.
55.        Mr O’Donnell filed in court what he described as “a consolidated document” (but which was entitled “amended application”) purportedly containing the grounds of Mr Eastman’s application. The amended application contained 19 grounds and a one page annexure entitled “Key to consolidated and additional grounds”. A copy of the amended application is annexed to these reasons. As will be seen, it consists of a series of propositions. Though apparently prepared and signed by a lawyer, it would be more accurate to characterise it as a set of submissions in support of an application.
56.        Mr O’Donnell informed the Court that the document included “four fresh grounds”, which, he said (somewhat unhelpfully), “relate basically to ballistics evidence in the Barry George case”. This appears to have been a reference to George v R [2007] EWCA Crim 2722 in which the Court of Appeal of England and Wales quashed a murder conviction after fresh evidence was admitted casting doubt on the reliability of the ballistics evidence led at Mr George’s trial.
57.        The transcript does not disclose whether his Honour read the so-called consolidated document or just the additional grounds. Certainly, it does not indicate that his Honour asked for time to do so. The entire hearing was over in 17 minutes including the pronouncement of orders and the publication of reasons.
58.        After some brief discussion about the hearing date, his Honour asked Mr Lundy about “his position”. Mr Lundy explained that he had only received the application that morning. But when asked whether he opposed “an application for an inquiry”, he said he did not. The following exchange then took place:
HIS HONOUR: If there’s no opposition to an application for inquiry, why
shouldn’t I order an inquiry if it’s not opposed?
Mr LUNDY: There’s no reason from my point of view, your Honour.
…
Mr LUNDY: I’m sorry, your Honour, could I just take a backward step.
Before you finalise that order, the grounds for ordering under section 422
must be – you must be satisfied in relation to those and I just wonder if your
Honour has considered the – those particular grounds in 422. I just – I don’t
want us to mooch off before your Honour is satisfied of those.
HIS HONOUR: Well, I understand you don’t oppose.
Mr LUNDY: No, I don’t but it’s a matter…
HIS HONOUR: No. But I still have to be satisfied. Well, I read the previous
material before dealing with the jurisdictional question.
...
Mr LUNDY: No. I just wanted it on record that your Honour is satisfied of
the grounds under section 422.
HIS HONOUR: But I’m doing this under the authority of the Full Court of
the ACT Supreme Court.
MR LUNDY: Yes.
HIS HONOUR: Whether that’s right or wrong is not a matter for me; I must
assume it to be right.

59. His Honour proceeded to order that there be an inquiry “into the conviction of the applicant for murder on 10 January 1989”. He then reformulated the order in the following way:
Upon the Court forming the view that:

(a)

There is a doubt or question about whether the applicant is guilty of the offence of murder for which he was convicted on 10 November 1995;
(b) The doubt relates to evidence admitted in that proceeding;
(c) The doubt could not have been properly addressed in that proceeding;

(d)

There is a significant risk that the conviction is unsafe because of the doubt or question;

(e)

The doubt cannot now be properly addressed in an appeal against the conviction; and
(f) It is in the interest of justice that the doubt be considered at an inquiry.
The Court orders that:
1. There be an inquiry into the conviction of the applicant for murder …
2. That such inquiry be conducted by a Judge of this Court or by a Magistrate in accordance with the provisions of Division 20.3 of the Crimes Act 1900 (ACT).

60. Paragraphs (a)–(f) above were said to relate to paragraphs (a)–(g) of s 422(1) of the Crimes Act. His Honour stated that he was “skipping” paragraph (f).
61. Shortly thereafter, his Honour adjourned the court. Later, one or other of the parties asked for clarification of the orders. Apparently, his Honour asked for submissions on the form of the orders and the Director filed a 16-page submission. The submission pointed out that the orders did not state the matters for the inquiry (although it will be recalled that s 422(4) requires that the inquiry be limited to the matters stated in the order for the inquiry), submitted that there could be “no inquiry at large” under Part 20 of the Crimes Act, and went on to address the grounds of the amended application. Noting that he had only been served with the amended application in court on 10 August, the Director submitted:
On consideration, it can be seen that the grounds (which are described as “consolidated and additional”) are framed in an extravagant and argumentative fashion, are not properly supported by any material on which your Honour could rely to attain the requisite satisfaction of matters as complying with section 422, and not least pay no heed at all to the tight restrictions imposed by section 422.

62. No application was made for the orders to be revoked. No submission was put (in terms at least) that the orders were infected by jurisdictional error, with the result that there was not only no impediment to reconsidering the matter but there was a duty to do so or, more accurately, to complete the statutory task (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”)). Rather, the Director proceeded to address each of the grounds of the amended application in order to show that none of the grounds satisfied the requirements of the section.
63. The matter returned to court on 3 September 2012.

3 September 2012

64. On this occasion the Director appeared in person. Mr Eastman was represented by Robert Richter QC. His Honour said that he was concerned to ensure that his order reflected the intention he had on 10 August that an inquiry be established on the basis of Mr Eastman’s application. Mr Richter urged his Honour to proceed with his stated intention and criticised the Director’s submission as “an appeal in the guise of a submission”. He characterised the Director’s position as “outrageous” and invited his Honour not to accept the written submissions. He contended that “the only thing that [was] missing [was] the formality of the annexure of the grounds” and that was a “slip”.
65. The Director submitted that the orders made on the previous occasion were “contrary to law”. The following exchange ensued:
HIS HONOUR: Well, you then appeal it.
MR WHITE: Well---
HIS HONOUR; And then you might ask for a Full Court of five and they
might overturn the silly decision that overturned me.
MR WHITE: Well, there is no appeal as such, from these proceedings …
With all respect, let us all consider the extent to which part 20 binds all of
with, with respect, including your Honour, and part 20 specifies the grounds
upon which an order may be made …
[T]he DPP is making a submission as to what your powers, with respect, are
under part 20 and they are clearly circumscribed.

66. At this point, his Honour interrupted the Director to say:
Well, it would have been a lot more convenient for that to be made on
10 August.

67. The Director responded by repeating that the Director was only given the amended grounds in court on 10 August. He offered no explanation for the position adopted by his Deputy on that day and emphasised again that his Honour was bound by Part 20. He submitted that his Honour could not make the order urged upon him. Without hearing further from Mr Richter, his Honour then proceeded to deliver judgment. It is convenient to set out his reasons in their entirety.
On 10 August 2012 when the court last dealt with this matter it had intended to program a hearing of an application for an inquiry, however, counsel for the DPP, Mr Lundy, informed the court the DPP did not oppose the application. I took that to mean non-opposition to the application before the court as amended. I also took that to be a concession given by counsel operating at arm’s length that I should order an inquiry based on grounds contained in the amended application. It was my intention that the extent of the inquiry be reflected in the grounds in the application. That course was not opposed by the DPP on 10 August.
Later the court was asked to reconvene to clarify its orders. The court has convened for that purpose today. Last week it asked for submissions about the form of any order that the court should make to reflect its intention on 10 August 2012, together with a copy of any proposed draft order. Only the legal representatives of Mr Eastman complied with that request. The DPP instead has filed no suggested variation to the court’s orders but has filed submissions seeking to cavil with the original orders made and, in effect, seeking to withdraw from its previous position of not opposing the orders sought by Mr Eastman.
The proposed amended orders which counsel for Mr Eastman requested I make today reflect my intention on 10 August 2012 based on the non- opposition to those orders by the DPP. I understood that such non-opposition was based on considered instructions. The attempt to cavil with the orders made on 10 August is, in effect, illustrative of a view that the Full Court in Eastman v Marshall is incorrectly decided. I have much sympathy for that view; however, the DPP is responsible for the outcome of that judgment, having made no attempt at the hearing before the Full Court to seek to defend that judgment I previously made that I had no jurisdiction to embark on the inquiry.
This led to the ACT Executive appearing before the Full Court to support the argument of Mr Eastman that the jurisdictional judgment was incorrect. Success in that regard permitted the ACT Executive after the Full Court decision, which it urged, to avoid deciding for itself whether to order an inquiry. These circumstances allowed the matter to proceed before the Full Court with no contradictor. The entire saga of the Eastman jurisdictional issue has been attended with a bizarre attitude by the DPP. The DPP now seeks to further muddy the waters in an inappropriate way.
The only way to place an inquiry into Mr Eastman’s conviction on a completely secure footing and lead to an urgent hearing of such an inquiry would be for the ACT Executive to have the intestinal fortitude to order an inquiry itself under its undoubted powers to do so. This whole sorry saga is the reason why I will not be making myself available to sit again on this court in any capacity once my reserved judgments in three recent Court of Appeal matters have been published, together with any reserve judgments after what will be my final week sitting as an additional judge of the ACT Supreme Court, subject to publication of any reserve judgments.

68. His Honour then amended the order of 10 August 2012. The only amendment was to limit the inquiry to the matters contained in the amended application and to attach a copy of the application to the order.

The inquiry

69.        On 7 September 2012 the Executive appointed Duggan AJ as a board of inquiry to inquire into Mr Eastman’s conviction “in relation to those matters contained in the amended application for inquiry filed in the ACT Supreme Court on 10 August 2012, a copy of which is attached to this instrument, and in relation to no other matter”.
70. On 27 September 2012 the Director filed a document entitled “Submissions on the scope of the inquiry”, in which he contended “that the Board should limit the inquiry to matters that fall within the pre-conditions of section 422”. The submissions largely reproduced the submissions made to the primary decision-maker on 3 September 2012. They were in both form and substance little more than a submission that the order for the inquiry should not have been made. No attempt was made to define the limits of the inquiry.
71.        On 8 November 2012 Duggan AJ heard oral submissions in relation to the scope of the inquiry. In the course of the Director’s submissions Duggan AJ asked the Director:

(1) To confirm “that there is no right of appeal against an order on (sic) inquiry”,
which the Director confirmed.
(2) Whether there was any avenue of judicial review of the order for an inquiry, to which the Director responded: “Well, any review would be in the nature of an administrative review as an administrative decision”, while expressing some reservation about the question of standing.
72. The Director emphasised that the criteria in s 422 were cumulative, so that there had to be compliance with every aspect of s 422 before an order could be made.
73. Duggan AJ ruled that he had “no jurisdiction or power” to take the course urged upon him by the Director “to refuse to inquire into the matters identified in the order [of the primary decision-maker] so as to determine whether those grounds answer to the descriptions set out in section 422”.
74.        This ruling was not challenged and the board of inquiry proceeded to gather evidence.
75.        More than eight months later, on 22 July 2013, Duggan AJ disqualified himself from further involvement in the inquiry because of a conflict of interest and the following day the Executive revoked his instrument of appointment and appointed Martin AJ as the board of inquiry. The terms of his Honour’s appointment were identical to the terms of his predecessor.
76.        Martin AJ held directions hearings on 5 August 2013 and 4 October 2013. Two days later in the month were allocated to hear argument on the scope of the terms of reference and written submissions were exchanged in the meantime.
77.        On 10 October 2013 the Director filed written submissions bearing the title “Interpretation of the matters stated in the order for Inquiry”. The Director submitted that the board was required to construe the orders made by the primary decision- maker on 3 September 2012 so as to ensure that they were valid and that the inquiry was conducted “within its jurisdiction”. The submission canvassed much the same ground covered in the submissions made to Duggan AJ.
78. On 5 and 6 November 2013 Martin AJ heard oral submissions in relation to s 422(1) and the scope of the inquiry. In the course of his submissions, senior counsel for the Director said:
… we don’t accept that what Marshall J did was a proper exercise of the
power but we’re not asking your Honour to make a ruling … (inaudible) …

79. Martin AJ rejected the Director’s submissions. In the course of giving his reasons, his Honour said:
I am required to comply with both the instrument of my appointment and the terms of the order made by Marshall J. The scope of the inquiry is primarily determined by reference to the terms of the order. However, it must be said that in some respects paragraphs of the order are ambiguous and couched in language more appropriate for submissions than terms of an order.
…
In making the order of 3 September 2012, Marshall J specifically recorded
that he had found that the amended application filed on 10 August 2012
complied with section 422(1) of the Act. In other words, his Honour was
satisfied that the conditions [which must be satisfied before the court may
order an inquiry] had been met.
…
There has been no attempt to challenge the validity of [Marshall J’s] order in
judicial proceedings.
…
Notwithstanding the language in which the written submission is couched …
the submission leaves no room for doubt that the Director is suggesting that
the Board should go behind the order of Marshall J and determine for itself
whether the subject matter for the inquiry ordered by his Honour satisfies the
conditions specified in section 422(1).
…
The jurisdiction of the Board does not depend on the Board being satisfied
that the conditions specified in section 422 have been fulfilled. The
jurisdiction to inquire is found in the instrument of appointment coupled with
the order of the Supreme Court.
As a matter of principle, a body performing an administrative function is
required to perform that administrative function in accordance with the
instrument or judicial order which confers jurisdiction and directs the
performance of that administrative function. It is no part of that
administrative function to inquire into the validity of the instrument or
judicial order. There is no power to decline to comply with the order before
the body performing the administrative function is of the view that the
instrument or order is invalid.
Applying these principles, it would be inappropriate for me to investigate
with respect to each paragraph of the order whether the particular doubt or
question satisfies the condition specified in section 422(1).
… if the terms of an order lead to ambiguity as to the scope of the particular
inquiry, having regard to background circumstances which provide the
context in which the order was made might assist in determining the scope of
the particular inquiry intended by the executive and Marshall J.

80. After hearing further submissions, Martin AJ proceeded to identify the matter to which each paragraph in the amended application annexed to the primary decision- maker’s order was directed.
81. On 11 November 2013 the board began hearing oral evidence. Four days later the Director filed the application the subject of the present proceeding. By the time the Court adjourned on 11 December 2013 the board had heard evidence from some 15 witnesses. By the time judgment was reserved on 21 February 2014 that number had risen to 36.

Is the application competent?

82. Mr Eastman, the Attorney-General and the ACT argue that the application is not competent. The first contention is that review of any kind is precluded by s 425 of the Crimes Act. The second is that an application under the ADJR Act may not be brought because the primary decision-maker’s order and Martin AJ’s “ruling” were not decisions made under an enactment within the meaning of the Act and, in any event, cannot be brought against Martin AJ because decisions made under the Inquiries Act are expressly excluded from the ADJR Act. The third contention is that prerogative relief is not available because neither the primary decision-maker’s order nor Martin AJ’s “ruling” directly affects the Director’s legal rights or amounts to a step in a process with possible legal consequences for him and, in any event, the Court does not have the power to issue prerogative relief directed to itself.
83. As we have already mentioned, the Director accepts that the ADJR Act cannot apply to the decision of Martin AJ. The other contentions must be rejected.

Is judicial review precluded by s 425 of the Crimes Act?

84. We turn first to the contention that judicial review is precluded by s 425. The argument is based on some remarks of the Full Court in Eastman v Besanko and buttressed by reference to the Explanatory Memorandum to the Crimes Legislation Amendment Bill 2001. The contention was advanced by Mr Eastman. This is the issue that generated the constitutional question. The Director contended that, if s 425(2) on its proper construction precludes judicial review of a purported decision to order an inquiry under s 424, being an administrative decision, then s 425(2) would be invalid, referring, amongst other cases, to Kirk v Industrial Court of New South
Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales
(2010) 239 CLR 531 (“Kirk”).
85. For the following reasons we are satisfied that s 425(2) does not preclude judicial review of such a decision.
86.        This Court is not bound to follow the Court of Appeal’s reasons in Eastman v
Besanko.
87.        First, it is not part of the ratio decidendi that s 425(2) precludes judicial review.
88.        Second, to the extent that there is any common reasoning in Eastman v Besanko, the context is different. That case concerned whether an applicant aggrieved by a decision not to order an inquiry had a right to judicial review. This case concerns the capacity to review a decision to order an inquiry. All members of the Court in Eastman v Besanko relied on the terms of s 425(1), which states that an applicant has no right to an inquiry.
89. Penfold J said at [27] that she had no doubt that s 425(1) was intended (in conjunction with the other provisions of Part 20) to ensure that, “while an application under s 424 was required before the Supreme Court could exercise its power under that section, the application did not give the applicant any further rights (or indeed obligations) in relation to the Supreme Court’s subsequent dealings with the application”. Her Honour did not refer to s 425(2).
90.        Dowsett J observed at [83]:
Whilst the wording of s 425 may arguably leave open the possibility of review under the ADJR Act, the intention to exclude both appeal and review is clear enough when one has regard to the explanatory memorandum. Further, when one keeps in mind the fact that the whole procedure is intended to be an exceptional supplement to the appellate process, and to provide a statutory regime to take the place of the exercise by the Executive of the royal prerogative, it seems most unlikely that the Legislature intended that a person who had no right to an order for an inquiry should nonetheless be able to seek review of a decision that there be no inquiry.

91. The Explanatory Memorandum declared:
Section 557E Rights and duties in relation to orders for inquiries
The purpose of this section is to make it clear that decisions about ordering an inquiry are purely discretionary and are not subject to appeal or review. This reflects the intention that inquiries be ordered only where all other ways of addressing the matter have been exhausted and where there are compelling reasons for reconsidering the conviction.
(Emphasis added.)

92. Section 557E was the predecessor of s 425.
93.        Dowsett J referred to the relevant provisions of the Legislation Act 2001 (ACT) (“Legislation Act”), which permit recourse to extrinsic material like an explanatory memorandum in order to work out the meaning of an Act, which is defined in s 138 to include “confirming or displacing the apparent meaning of the Act”.
94. Dowsett J concluded (at [87]) that Parliament intended to exclude a challenge to a decision under s 424 by way of either an appeal or a review, including judicial review. He said that that purpose was achieved, “albeit clumsily”, by s 425. He explained that, “[w]hilst, as a matter of common legal terminology, an appeal is distinct from an application for review, it is not impossible that the word ‘appeal’ was used to encompass review.” He added: “Any other approach seems to produce a very curious result”. Indeed in the next paragraph he described as absurd the notion that there would be review of the decision of one member of the Court by another, with a right of appeal to the Court of Appeal.
95.        Graham J, who also relied on the Explanatory Memorandum, was similarly of the opinion that the decision of the Supreme Court on an application for inquiry was not open to appeal or review.
96.        There are, with respect, numerous difficulties with these opinions.
97. First, any exercise of statutory interpretation must begin with the text, albeit that the words are to be interpreted in context and having regard to the legislative purpose. The difficulty with the proposition that s 425 precludes judicial review is that it flies in the face of the text. The section, in terms, only excludes appeals. It does not exclude judicial review. Section 34B of the Supreme Court Act gives the Court the power to grant orders in the nature of prerogative relief. Certain decisions are excluded from review under the ADJR Act. They are set out in Schedule 1 to the Act. A decision under the Inquiries Act is one such decision. No party suggested that a decision to order an inquiry under Part 20 of the Crimes Act was caught by any part of Schedule 1.
98. An application for judicial review is not an appeal. Judicial review is more limited than an appeal. A court reviewing an administrative decision may not substitute its own decision for that of the administrator. Generally speaking, judicial review is concerned with the process of decision-making or the limits of the decision-maker’s powers. If Parliament had intended to exclude judicial review, it would surely have said so. One of the matters which the Court is required to take into account in deciding whether extrinsic material should be considered in working out the meaning of the Act or in deciding the weight to be given to that material is the desirability of being able to rely on the ordinary meaning of the Act: Legislation Act, s 141.
99.        Second, no member of the Court in Eastman v Besanko referred to the High Court’s judgments in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157”) or Kirk.
100.      In Plaintiff S157 the Court held that a privative clause in the Migration Act 1958 (Cth) does not oust review for jurisdictional error. That clause appears in s 474(1) of the Act, which purports to exclude both appeals and reviews of any kind (stating that certain decisions – “privative clause” decisions – “must not be challenged, appealed against, reviewed, quashed or called in question in any court”) and which expressly provides that a privative clause decision “is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account”.
101.      Gleeson CJ noted that privative clauses are construed “by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied” (citing Public Service
Association of South Australia v Federated Clerks’ Union of Australia, South
Australian Branch (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ).
102.      Earlier, in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 55–56, which was cited by Gleeson CJ in Plaintiff S157, Mason CJ had said of privative clauses that “notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognize that they protect manifest jurisdictional errors or ultra vires acts”.
103.      In Kirk the High Court considered the effect of a privative clause in the Industrial Relations Act 1996 (NSW), which purported to preclude both appeals and reviews of any kind and which was expressed in similar language. There, the question was whether the NSW Court of Appeal could and should have made orders in the nature of certiorari to quash orders for the convictions of a company and a director of that company for offences against the Occupational Health and Safety Act 1983 (NSW). At [100] the plurality said that “[l]egislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power”.
104.      Contrary to the submission by Mr Eastman, there is no good reason to conclude that the reasoning in Kirk should not also apply to Territory Supreme Courts.
105.      A similar issue arose for consideration in Wainohu v New South Wales (2011) 243 CLR 181.
106. Section 35 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) purported to exclude the jurisdiction of the Supreme Court to undertake judicial review of declarations made by a Supreme Court judge that a particular organisation was a “declared organisation”. Such a declaration could be made if the judge was satisfied that members of the organisation associated for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and the organisation represented a risk to public safety and order in the State. It relevantly provided that, save for a limited right of appeal conferred by s 24 of the Act, the exercise of such a function could not be:

(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.

This was so regardless of whether the proceedings related to a question of compliance or otherwise with the provisions of the Act or the rules of natural justice. For more abundant caution, Parliament also stipulated that the section had effect despite any provision of any other law (whether written or unwritten) and “proceedings” was defined to include “proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief”.
107.      In Wainohu French CJ and Kiefel J said at [15] that “[i]t was not in dispute” that the effect of the decision in Kirk is that “the section would not prevent a person from seeking prerogative relief in the Supreme Court of New South Wales on the ground of jurisdictional error”. At [89] Gummow, Hayne, Crennan and Bell JJ said of the purported ouster of the Supreme Court’s jurisdiction in respect of judicial review that “[t]he effectiveness of that exclusion is denied by the decision in [Kirk]”. The function conferred upon judges of the Court in that case was described as an administrative, not a judicial act. Compare s 424(4) of the Crimes Act (see [14] above).
108.      In any case, with the possible exception of Dowsett J, the opinions expressed by the Full Court in Eastman v Besanko were limited to the capacity of an applicant for an inquiry to seek judicial review of a decision to refuse to order an inquiry. Their Honours said nothing about whether an application might be brought by the Director or some other person with standing to seek judicial review of a decision to make an order for an inquiry, more particularly, where the decision to do so was infected by jurisdictional error. Indeed, the issue does not appear to have crossed their minds.
109. If, on the other hand, the opinions were intended to go further and to apply to an application of the kind brought by the Director in the present case, then we would respectfully disagree. To the extent that Dowsett J expressed an opinion that judicial review of the kind brought by the Director was precluded by s 425, his reasons are obiter. In our opinion, Parliament’s intention was to preclude appeals, but not judicial review for legal or jurisdictional error.
110.     For our part, we are unable to derive any assistance from the Explanatory Memorandum. It is not clear what was meant by the words “or review”. In particular, it is not at all clear that the intention was to exclude judicial, as opposed to merits, review. For the reasons set out below, the better view is that the intention was not to exclude judicial review. In any event, the words in the Explanatory Memorandum should not and cannot be read in lieu of the text. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, Mason CJ, Wilson and Dawson JJ stated:

327. Gageler J explained in New South Wales v Kable (2013) 298 ALR 144; [2013] HCA 26 (“Kable”) at [52]:
[A] purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligation, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.
(Footnotes omitted, emphasis added.)

328.      A decision or order of a superior court of record, even if made in excess of jurisdiction, must be followed unless and until it is set aside: see, for example, Cameron v Cole (1944) 68 CLR 571 at 590; Re Macks; Ex parte Saint (2000) 204 CLR 158 (“Ex parte Saint”) at [19]–[23] (Gleeson CJ); [52]–[57] (Gaudron J); [328] (Hayne and Callinan JJ) and Kable at [32], [56].
329.      This Court is a superior court of record (Supreme Court Act, s 3) and in the present case made an order. The position is complicated, here, though because the order in question is not a judicial order (cf. Kazzi at [5]); it was not made as a result of a determination made by a judge acting in a judicial capacity (cf. Love v Attorney- General for the State of New South Wales (1990) 169 CLR 307 at 318–322). The doctrine discussed in Cameron v Cole and Ex parte Saint has its genesis in the nature of judicial power (Kable at [33], [59]), a power the primary decision-maker was not exercising.
330.      In Bhardwaj Gaudron and Gummow JJ emphasised at [47] that, subject to the Constitution, parliament may give an administrative decision whatever force it likes. But at [48] their Honours observed:
[L]egislative provisions should not be construed as giving rise to an implication which gives an administrative decision greater force or effect than it would otherwise have unless the implication is strictly necessary.

331. Importantly, for present purposes, their Honours said at [50]:
[O]nly if the general law so requires or the Act impliedly so directs, are decisions involving jurisdictional error to be treated as effective unless and until set aside.

332. Their Honours held at [51] that the position under the general law is that a decision affected by jurisdictional error is a decision that lacks foundation and is properly regarded as no decision at all. The question here, then, is whether the Crimes Act impliedly directs that a decision to order an inquiry affected by jurisdictional error is to be treated as effective unless and until set aside.
333. Part 20 of the Crimes Act creates a number of obligations that flow from the making of an order for an inquiry. They include an obligation on the Executive to appoint a board of inquiry limited to the matters stated in the order for the inquiry. Certainly where the decision to order the inquiry is not the Executive’s decision, it is no part of the Executive’s function to decide whether or not the order is lawful. It is inconceivable that the Executive could decide to ignore an order of this Court (even if it is not a judicial order) because it considered it to be unlawful – at least not until the order was set aside.
334. Once the board is appointed, the Inquiries Act confers on the board sweeping powers. We referred to these powers earlier in these reasons. Search warrants may be issued authorising what would otherwise be a trespass and enabling documents and other things to be seized and delivered up. People may be compelled to appear before the board, to produce documents and other relevant things and to give evidence under oath. They cannot avail themselves of the common law privilege against self- incrimination and penalties may be imposed on them if they refuse to answer questions or produce what the board requires.
335. In our view the Crimes Act impliedly directs that a decision of the Court to order an inquiry which is tainted by jurisdictional error is to be treated as effective unless and until set aside. The contrary conclusion is inconsistent with the statutory scheme and would result in such a level of uncertainty and public inconvenience that a different result could not have been intended.
336. What, then, would be the implications for the validity of the appointment of Martin AJ if an order is made setting aside the order of the primary decision-maker? Can the appointment remain valid, and the inquiry continue, by force of the Inquiries Act, as contended by Mr Eastman, the Attorney and the ACT? Or must it follow that the appointment is also invalid and the inquiry cannot continue, as contended by the Director?
337. In our opinion, on the proper construction of the relevant provisions of the Crimes Act and the Inquiries Act, the validity of the appointment of Martin AJ as a board of inquiry and of the actions taken in reliance on this appointment (more particularly the legal consequences of the appointment) depend on the legal force of Marshall J’s order. They do not arise independently – under the Inquiries Act. The consequence is that, if the order is declared to have been an invalid exercise of power, the appointment of Martin AJ and the actions, rights and duties that flow from it must also be invalid. The considerations that lead us to that conclusion are as follows.
338. First, an inquiry under Part 20 of the Crimes Act can only be ordered if the preconditions in s 422(1) are satisfied. If they are not, then neither the Executive (under s 423) nor the Supreme Court (under s 424) can order an inquiry under Part 20.
339. Second, if an order is made under s 424, the Executive must appoint a board of inquiry: s 427(1). It has no discretion.
340. Third, the terms of the order made under s 424(1) are critical because they define the nature and scope of the inquiry: “The inquiry must be stated in the appointment to be in relation to the matter stated in the order, and in relation to no other matter”: s 427(2).
341. Fourth, the sections that provide for the report by the board, the publication of the report and the action taken on the report by the Supreme Court (Crimes Act, ss 428, 429 and 430) apply only in relation to inquiries ordered under Part 20. These are critical features of an inquiry under Part 20. They do not (and cannot) apply to inquiries ordered by the Executive in the independent exercise of its discretion under s 5 of the Inquiries Act.
342. It is true that s 426 of the Crimes Act provides that the Inquiries Act applies to “an inquiry” (defined in s 421 to mean an inquiry under Part 20). But that is subject to the provisions in Division 20.3 of the Crimes Act, including the provisions to which we have just referred. It is also true that s 427(1) provides that, if an inquiry is ordered, the Executive must appoint a board of inquiry under the Inquires Act. But that does not mean that the inquiry is an inquiry under the Inquiries Act. The resulting inquiry, as provided in s 421, is an inquiry under Part 20 of the Crimes Act. Having regard to the terms of Division 20.3 of the Crimes Act, such an inquiry is different from an inquiry under the Inquiries Act in several fundamental respects. From the perspective of a convicted person, the critical feature is that the resulting report must be provided to the Supreme Court and must result in one of the orders referred to in s 430. The Inquiries Act simply provides the machinery, including some procedure and powers, which will apply to an inquiry under Part 20, subject to Division 20.3 of the Crimes Act.
343. The appointment of the board of inquiry and the rights or duties that arise by reason of that appointment depend on the continuing legal force of the primary decision- maker’s order. They do not arise simply by force of the Inquiries Act. If the order is quashed and set aside because his Honour exceeded his jurisdiction under the Crimes Act, the appointment of the board of inquiry is also invalid. And the powers, rights and duties that arise by reason of the appointment have no continuing legal effect.
344. Contrary to the submissions made by the Attorney-General, the ACT and Mr Eastman, it is not correct that Part 20 of the Crimes Act makes only minor adjustments to the nature of the inquiry. The provisions of Division 20.3 define the very nature and scope of an inquiry under Part 20, as well as the results or action that can flow from it. An inquiry under the Inquiries Act cannot result in any of the actions under s 430 of the Crimes Act. Whilst the Attorney-General and the ACT concede that the “legal consequences” under s 430 would not apply if the primary decision-maker’s order is quashed, and that accordingly the current inquiry could no longer be an inquiry under the Crimes Act, they maintain (as does Mr Eastman) that there would still be an inquiry under the Inquiries Act. That submission must be rejected. The provisions of the Crimes Act and Inquiries Act operate in such a way that the validity of the appointment of the board of inquiry and the rights and duties that arise from that appointment depend on whether the order for the inquiry remains in place. The language of the relevant provisions and the statutory context make it plain that if the order is struck down for jurisdictional error, there can be no valid inquiry.
345. The critical question then, in relation to the validity of the appointment, is whether the order of made by primary decision-maker should be set aside in the exercise of the Court’s discretion. That is a subject to which we turn later in these reasons.

Did Martin AJ fall into jurisdictional error by deciding to proceed with the inquiry without regard to the limitations of s 422 of the Crimes Act or on the basis that s 422 defines the scope of the inquiry?

346. This question has been framed in terms of the error the Director contends Martin AJ made when responding to the Director’s submission concerning the interpretation of the matters in the “order for inquiry” and the scope of the inquiry. Mr Barnes made a submission to Martin AJ about the scope of the inquiry on 28 January 2014 but, despite the stance he took in this Court, he did not then take the same position as the Director. His position was to argue for a narrow interpretation of the terms of reference, based on their language (in particular, term of reference 5) rather than the provisions of the Crimes Act, an interpretation Martin AJ did not accept.
347. In the event that the Court refuses to set aside the order establishing the inquiry, the Director seeks a declaration that the primary decision-maker’s order is subject to, or should be construed by reference to, the limitations in s 422. He also asks for an order in the nature of mandamus requiring Martin AJ to conduct the inquiry in accordance with the declaration. This relief is sought on the basis of the Director’s contention that the board fell into jurisdictional error by deciding to proceed with the inquiry without regard to the limitations in s 422 and by failing to conduct the inquiry on the premise that s 422 defines the scope of the matters for the inquiry. The Director submitted that the power to conduct the inquiry is conferred by and depends on both Part 20 of the Crimes Act and the instrument of appointment. Mr Barnes adopted these submissions and joined with the Director in his application for relief.
348.      Before considering whether Martin AJ erred in the way the Director contends, a number of points should be made.
349.      First, the Director did not apply for any specific ruling or order from Martin AJ to the effect that the board did not have the power to inquire into certain grounds. Nor did Mr Barnes. Rather, each of them simply advanced a number of propositions concerning the approach the board was required to take in conducting the inquiry. The Director’s key proposition was that the board was required to construe the primary decision-maker’s order so as to ensure that the orders were “valid” and the inquiry was conducted within jurisdiction. The Director did not directly ask Martin AJ to rule on the validity of the primary decision-maker’s order. Nor did he contend that the inquiry was not being conducted within jurisdiction. And neither did Mr Barnes, although, after Martin AJ declined to do as he sought, Mr Barnes’s counsel, Dr Freckelton, indicated that he would be seeking prohibition and/or an injunction because taking evidence from Dr Wallace would be beyond the terms of reference. Even then, however, he did not file his application until after Dr Wallace had given evidence.
350. Second, and most importantly, Martin AJ did not decide, in terms, that the board would proceed with the inquiry “without regard to the limitations of s 422 of the Crimes Act.” The key passages in Martin AJ’s reasons are extracted earlier in this judgment (at [79]). Critically, his Honour found that the Director’s submissions amounted to a suggestion that the board should “go behind the order of Marshall J” and determine for itself whether the conditions in s 422(1) had been satisfied.
351.      Read in context and in their entirety, the reasons reveal that Martin AJ did not make any decision of the sort contended by the Director. The basis upon which the declaratory relief is sought is accordingly misconceived.
352.      In any event, we are not satisfied that Martin AJ erred in any way, let alone jurisdictionally, in the reasons he gave for rejecting the Director’s submission.
353. The board’s power or jurisdiction is to inquire into and report upon the “matter” stated in the order made by the Supreme Court under s 424(1). That is clear from the terms of s 422(2) and 427(2). It is for the Supreme Court, not the board, to determine whether the conditions in s 422(1) are satisfied. While it may be necessary for the board to construe the terms of the relevant order, it does not follow that the board is empowered to decide whether the orders were validly made. Nor is the board empowered, let alone required, to refrain from inquiring into any of the matters referred to in the order on the basis that they are not within the terms of s 422(1) and are therefore invalid. That was the effect of the Director’s submission. Martin AJ was correct to reject it.
354.      Even if we were of the opinion that there was some error in Martin AJ’s reasons, we would not in any event grant the relief sought. Although Martin AJ called his reasons a “ruling”, in truth they were no more than reasons for rejecting the Director’s submissions. Reasons alone are not open to challenge. In any event, the declaration he applied for is in vague and abstract terms and is essentially hypothetical in nature: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10.

What orders, if any, should be made?

355. We have found that the primary decision-maker’s decision is affected by reviewable error. As we have already observed, however, it is another question whether the plaintiffs should be afforded any relief. It is common ground that relief (whether under the ADJR Act or at common law) is discretionary, even where the error goes to jurisdiction.
356.      So what considerations bear on the question of whether relief should be granted or refused in the exercise of the Court’s discretion?
357.      Here, there is no question about the plaintiffs exhausting their appeal rights as they have none. Delay, however, though it may not preclude the bringing of the application, remains relevant. So, too, do the reasons for, and consequences of, the delay. Ultimately, the question is: what is just?
358.      There is no need to repeat what has already been said. It is sufficient at this point to make the following observations. Not only did the Director fail to seek judicial review for a period of 14 months but he failed to seek independent legal advice. He chose instead to try to persuade the board to limit the scope of the inquiry – a course which was doomed to fail. Notwithstanding his explanation for the delay, it is difficult to understand any of these acts or omissions. Duggan AJ had refused to do as the Director asked as early as November 2012 and still he did nothing. The result of the Director’s inaction and his election to pursue a hopeless administrative course is that by the time the hearing in this Court had started, the inquiry was well under way and a vast amount of money had been spent.
359.      While Mr Barnes’s position is different from the Director’s, he also delayed in seeking relief although he was apprised of the terms of the inquiry as early as February 2013. The result of his delay is the same.
360.      On 11 December 2013 the Director applied for an interlocutory injunction to restrain the inquiry from hearing any more oral evidence until further order. That application was refused, in part because at that stage the Director’s delay was largely unexplained. When judgment was reserved on 21 February 2014, by which time Mr White’s affidavit had been read, neither the Director nor Mr Barnes sought any interlocutory relief. In the result, on the evidence before the Court, the inquiry is now drawing to a close. Most, if not all, of the evidence has been taken. After that, all that remains is for submissions to be put and for the board to deliberate and then report.
361.      In the meantime, the Director and Mr Barnes have been compelled to produce documents. Doubtless, former employees of the Director have given evidence. It is likely, too, that Mr Barnes has already given evidence and been subjected to cross- examination. These were the obligations these proceedings were presumably designed to avoid. No doubt, some damage to Mr Barnes’s reputation has already occurred. Even before Mr Barnes applied to join these proceedings, at least one witness severely critical of him had given some evidence. None of this can be undone. In these circumstances it may be doubted whether there is any real utility in granting relief.
362.      Moreover, the inquiry appears to have uncovered issues which cry out for resolution. According to an affidavit from Mr Eastman’s solicitor, Helen Hayunga, affirmed on 19 February 2014, the contents of which are not in dispute, the inquiry has identified “serious issues” which, we infer, have already been the subject of extensive evidence. Those issues include:

(a)

The expression of opinions by Mr Barnes at trial concerning the source of propellant particles being PMC ammunition without having conducted tests or having data to substantiate those opinions;

(b)

Possible conflicts revealed in the notes/reports/evidence of Mr Barnes, file notes of the ACT DPP and a report of an overseas expert regarding the number of particles on slides, the description of relevant particles, the destruction of particles, the continuity of exhibits and the source of particles claimed to have been tested;

(c)

The possibility that there is no reliable data for the opinion that there were PMC propellant particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Bradshaw (not the murder weapon) as the source of … the gunshot residue in Mr Eastman’s car;

(d)

The possibility that there is only data for two “rogue” particles at the scene and to “rogue” particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Lenaghan as the source of the two “rogue” particles in Mr Eastman’s car;

(e)

Tests conducted by Dr Wallace to show that non silenced weapons can be a source of “charred” particles;

(f)

The “database” relied upon by Mr Barnes as part of his ability to exclude other ammunition types as a source of the gunshot residue was work conducted by another scientist, Mr Strobel, as part of his master’s course;

(g)

Whether the expression of opinions by Mr Barnes at the trial … went too far and had the potential to mislead;

(h)

The preparedness of Mr Barnes to express opinions at the inquest without having conducted tests or having data to substantiate those opinions;

(i) The covert taping of a telephone conversation between Mr Barnes and an AFP officer, in which Mr Barnes expressed himself in a manner that might indicate lack of independence;

(j) The Victorian police laying internal disciplinary charges against Mr Barnes and subsequently withdrawing those charges upon Mr Barnes’ resignation in 1993.

363.      Ms Hayunga also referred to issues relating to the failure of the AFP and/or the Director to disclose some of these matters. She said, too, that, in relation to paragraph 13 of the terms of reference (the availability of a hypothesis consistent with innocence), the board expects to receive evidence concerning “an important new line of inquiry”, which she asserted was in the nature of fresh evidence.
364.      To call a halt to the inquiry at this point would be unconscionable.
365. It is true that, if we were to make the orders the Director seeks, the Court would have to consider Mr Eastman’s application for an inquiry according to law. It may be that Mr Eastman could persuade the Court that all the preconditions in s 422(1) have been met. But that course would result in further delay. In the event that the Court were to order an inquiry which was more limited in its terms than the inquiry ordered by the primary decision-maker, much of the cost incurred to date would have been wasted. Even if it were to order an inquiry on substantially the same terms, there is no guarantee that the staff of the current inquiry, including the board itself, or counsel for Mr Eastman would be available for any future inquiry.
366. It is also true that, if this Court were to make the orders the Director seeks, it would be open to the Executive to order an inquiry under Part 20 of the Crimes Act. It would, of course, have to be satisfied that the preconditions in s 422(1) (apart from paragraph (f)) have been made out. That may be easier to do now after all the board’s investigations. Conceivably, any new board could also make use of the material acquired to date and Martin AJ might be appointed once again. But the Executive is not bound to order an inquiry and, despite its enthusiasm for the current inquiry, it may be unwilling to assume the responsibility for establishing one of its own.
367.      At this late stage, having regard to the inordinate delay and the considerable work the board of inquiry has carried out, the personal and financial investment in that work and the matters the board has uncovered, we are of the opinion that it is in the interests of justice that the inquiry take its course and the board complete its investigation.
368.      It follows that we would refuse relief in the exercise of our discretion.

Costs

369.

We agreed to reserve the question of costs. Our preliminary views, however, are as follows. The Director should pay Mr Eastman’s costs, as he has agreed to do, and also the costs of the ACT. The Attorney should pay his own costs. Mr Barnes should pay the costs of his joinder application. Otherwise there should be no order as to costs. If the parties are content with orders to this effect, then we will make them. If not, we will order that within seven (7) days each party file submissions, in support of the orders he or it seeks and each other party will have a right to respond within the same period of time. We propose deciding the question on the papers.

I certify that the preceding three hundred and sixty-nine (369) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.
Associate:
Date:

Counsel for the Plaintiff:	Mr T Game SC, Mr S Free and Ms J Roy
Solicitor for the Plaintiff:	Office of the Director of Public Prosecutions, ACT
Counsel for the First Defendant:	The First Defendant filed a submitting notice.
Counsel for the Second Defendant:	The Second Defendant filed a submitting notice.
Counsel for the Third Defendant:	Mr P Hanks QC and Ms K Katavic
Solicitor for the Third Defendant:	Legal Aid ACT
Counsel for the Fourth Defendant:	Mr P Garrisson SC and Mr N Hancock
Solicitor for the Fourth Defendant:	ACT Government Solicitor
Counsel for the Intervener:	Mr P Garrisson SC and Mr N Hancock
Solicitor for the Intervener:	ACT Government Solicitor
Counsel for the Applicant (Robert Barnes):	Dr I Freckelton SC and Mr A Imrie

Solicitor for the Applicant (Robert Barnes): Russell Kennedy

Date of hearing:	9–11 December 2013, 20–1 February 2014
Date of judgment:	22 May 2014

ANNEXURE

(c)	the doubt or question could not have been properly addressed in a relevant proceeding; and
(d)	there is a significant risk that the conviction is unsafe because of the doubt or question;
(e)	the doubt or question cannot now be properly addressed in an appeal against the conviction; and
(f)	if an application is made to the Supreme Court for an inquiry in relation to the conviction—an application has not previously been made to the court for an inquiry in relation to the doubt or question; and
(g)	it is in the interests of justice for the doubt or question to be considered at an inquiry.

(2)	The inquiry is limited to matters stated in the order for the inquiry.
(3)	If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.

(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.

(a)	that a breach of the rules of natural justice happened in relation to the making of the decision;
(b)	that procedures that were required by law to be observed in relation to the making of the decision were not observed;
(c)	that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)	that the decision was not authorised by the enactment under which it was purported to be made;
(e)	that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made;
(f)	that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)	that the decision was induced or affected by fraud;
(h)	that there was no evidence or other material to justify the making of the decision;

(a)	taking an irrelevant consideration into account in the exercise of a power; and
(b)	failing to take a relevant consideration into account in the exercise of a power; and
…
(g)	an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and
(h)	an exercise of a power in such a way that the result of the exercise of the power is uncertain;
…

a.	the matters specified in s 422(1)(a), (b), (c), (d) and (f);
b.	the grounds specified in the amended application for an inquiry;
c.	the scope of the previous application for an order under s 422 made by Mr Eastman, which was determined by Besanko J; and
d.	the matters previously considered by Miles CJ in his Honour’s inquiry into the conviction.

(8)	Alternatively, did the primary decision-maker lack jurisdiction to make the decision because the preconditions contained in s 422(1) were not made out (ground 3)?
(9)	Is the order outside that contemplated in s 424 of the Crimes Act because it does not state the matters in respect of which the inquiry is to be conducted (ground 4)?
(10)	What is the effect of any reviewable error by the primary decision-maker on the appointment by the Executive of Martin AJ as the board of inquiry and the conduct of the inquiry?
(11)	Did Martin AJ fall into reviewable error by deciding to proceed with the inquiry on 5 and 6 November 2013 without regard to the limitations of s 422 or by failing to conduct the inquiry on the basis that s 422 defines its scope and construing the terms of reference as being subject to s 422 (grounds 5 and 6)?
(12)	If the application is successful, what orders, if any, should be made?

(a)	There is a doubt or question about whether the applicant is guilty of the offence of murder for which he was convicted on 10 November 1995;
(b)	The doubt relates to evidence admitted in that proceeding;
(c)	The doubt could not have been properly addressed in that proceeding;
(d)	There is a significant risk that the conviction is unsafe because of the doubt or question;
(e)	The doubt cannot now be properly addressed in an appeal against the conviction; and
(f)	It is in the interest of justice that the doubt be considered at an inquiry.

(a)	challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b)	restrained, removed or otherwise affected by any proceedings.

(a)	The expression of opinions by Mr Barnes at trial concerning the source of propellant particles being PMC ammunition without having conducted tests or having data to substantiate those opinions;
(b)	Possible conflicts revealed in the notes/reports/evidence of Mr Barnes, file notes of the ACT DPP and a report of an overseas expert regarding the number of particles on slides, the description of relevant particles, the destruction of particles, the continuity of exhibits and the source of particles claimed to have been tested;
(c)	The possibility that there is no reliable data for the opinion that there were PMC propellant particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Bradshaw (not the murder weapon) as the source of … the gunshot residue in Mr Eastman’s car;
(d)	The possibility that there is only data for two “rogue” particles at the scene and to “rogue” particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Lenaghan as the source of the two “rogue” particles in Mr Eastman’s car;
(e)	Tests conducted by Dr Wallace to show that non silenced weapons can be a source of “charred” particles;
(f)	The “database” relied upon by Mr Barnes as part of his ability to exclude other ammunition types as a source of the gunshot residue was work conducted by another scientist, Mr Strobel, as part of his master’s course;
(g)	Whether the expression of opinions by Mr Barnes at the trial … went too far and had the potential to mislead;
(h)	The preparedness of Mr Barnes to express opinions at the inquest without having conducted tests or having data to substantiate those opinions;