Eastman, Ex parte- Re Governor, Goulburn Correctional Centre

[1998] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S178 of 1998

In the matter of –

Application for a writ of habeas corpus directed to THE GOVERNOR, GOULBURN CORRECTIONAL CENTRE, GOULBURN

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

Ex parte –

DAVID HAROLD EASTMAN

Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 7 DECEMBER 1998, AT 11.01 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friend, MR R.D. CAVANAGH, for the applicant.  (instructed by J. Boersig, Newcastle Legal Centre)

MR S.J. GAGELER:   If your Honour pleases, I appear for the Director of Public Prosecutions of the Australian Capital Territory, the applicant for joinder on a summons filed this morning.  (instructed by the Director of Public Prosecutions (ACT))

HIS HONOUR:   Yes, Mr Gageler.  There is a note from the Registrar of the Court that the Governor, Goulburn Correctional Centre, Goulburn, does not wish to take any part in the proceedings and submits to the orders of the Court save as to costs.  The Governor is excused.

What is your attitude to the application?

MR JACKSON:   No objection, your Honour.

HIS HONOUR:   Very well, the Director of Public Prosecutions for the Australian Capital Territory is added as a party to the proceedings.

MR JACKSON:   Your Honour, may I say immediately this is in form an application for an order nisi for habeas corpus.  It is really effectively necessary to start any proceedings in that way because of Order 55 rule 1.  But what we seek today is a direction pursuant to Order 55 rule 2 that the application for relief:

be made by notice of motion to…..a Full Court –

HIS HONOUR:   Yes.  Is that the form that you have sought in the order nisi?

MR JACKSON:   No, your Honour.  The order nisi is a document that we were asked to provide the Court with as a form of order nisi.  However, the only order that we seek is one in terms of Order 55 rule 2 which would be that your Honour direct the application be made by notice of motion to a Full Court.  The rule then provides – empowers the Justice to:

adjourn the application so that notice of the application may be given accordingly.

That is the course that we invite your Honour to take.  Your Honour, I say that is the course we invite your Honour to take for two reasons:  the first is that underlying the application lies the fact that the applicant is a person held in prison pursuant to a conviction for murder in the Australian Capital Territory  In order to succeed in the present proceedings we would need to have some earlier decisions of the Court overruled.

HIS HONOUR:   Yes.  How long have those decisions stood?

MR JACKSON:   Your Honour, Spratt v Hermes is the earlier of the two decisions directly relevant.  It is 1965.  And, of course, one then has Capital TV and Appliances.  However, of course, that the argument which we would seek to advance is not without substance may be seen from some dicta of Justices Gaudron and Gummow in Kruger v The Commonwealth (1997) 190 CLR 1. Could I give your Honour the pages now or take your Honour to it?

HIS HONOUR:   Just give me the pages, thank you.

MR JACKSON:   First of all, your Honour, Justice Gaudron, page 108.  I am not going to all the parts, I will only go to the central parts of it.  Page 108, the bottom of the page going through to about point 4 on page 109.  Justice Gummow, page 168 and the paragraph commencing, “In my view”. 

HIS HONOUR:   I think some of these points were hinted at in the recent hearing that we had the pleasure of undergoing in the Court last week in the cross‑vesting cases so I do not want to appear unduly naive about the controversy which is raised by the application.

MR JACKSON:   No, your Honour.  It goes through essentially to page 176 in quite a long passage in Justice Gummow’s reasons and these observations, of course, are obiter dicta by his Honour in the particular case.  It was adverted to also in Gould v Brown (1998) 72 ALJR 375 at page 397 by Justice Gaudron in paragraph 63 of her Honour’s reasons and your Honour will see, in the fourth or fifth‑last line of that paragraph:

However, that view was questioned in a number of judgments in Spratt v Hermes.  And in Kruger, Gummow J and I both noted that it is difficult, if not impossible, to reconcile the decisions with respect to Territory courts with the terms of Ch III

And then the references are given back to the passages in Kruger to which I adverted.

Now, your Honour, the position shortly is, in relation to the Supreme Court of the Australian Capital Territory, that it was established by a Commonwealth enactment, the Australian Capital Territory Supreme Court Act 1933, the relevant provision being section 6(1).

HIS HONOUR:   I have that.  So this is a federal Act?

MR JACKSON:   Yes, your Honour.  At the time I am talking about – initially it was a federal Act which established the Australian Capital Territory Supreme Court.  So there was no doubt about the initial creation of it by the Parliament.  The Australian Capital Territory obtained a form of self‑government pursuant to the Australian Capital Territory (Self-Government) Act 1988 and some laws of the Commonwealth then in force, but not initially in the Australian Capital Territory Supreme Court Act to which I just referred, became enactments of the Australian Capital Territory.

Could I take your Honour to the relevant provisions of that, of the Australian Capital Territory (Self-Government) Act.  You will see section 34.  It provided in subsection (2) that:

A law specified in Schedule 2 shall be taken to be an enactment –

an enactment meaning a law – to be treated as a law of the Australian Capital Territory. If one goes to Schedule 2 which is on the page numbered 32 in I think the copy which your Honour should have, one of the laws to which it referred was the Australian Capital Territory Supreme Court Act 1933.

HIS HONOUR:   I see in subsection (3) of section 34 it says:

Subsection (2) does not apply to…..the Australian Capital Territory Supreme Court Act 1933 until 1 July 1992.

MR JACKSON:   So, to put it shortly, pursuant to the Self-Government Act, the Supreme Court Act did not become an enactment until July 1992. Now, at that point, 1 July 1992, another Commonwealth Act came into force. That is called the Australian Capital Territory Supreme Court Transfer Act 1992.

HIS HONOUR:   Yes, I have that.

MR JACKSON:   What your Honour will see from it is that essentially it added what is Part VA to the Self-Government Act.  Your Honour will see at page 918 which, I think, is the third page of the document you have, that added Part VA and your Honour will see it refers to section 48A, “The Supreme Court” has “all original and appellate jurisdiction”.  Then if I could take your Honour back one page to the definition section.  The Supreme Court is defined, in section 4, to mean:

the Supreme Court of the Territory existing under the Supreme Court Act 1933 of the Territory –

and that was the name that the Australian Capital Territory Supreme Court Act acquired upon 1 July 1993.

HIS HONOUR:   So, although enacted in 1933 as a federal Act, it was deemed, after self-government, to be an Act of the Territory.

MR JACKSON:   Yes, that - - -

HIS HONOUR:   But did not come into force until July 1993.

MR JACKSON:   On 1 July 1993 it became - - -

HIS HONOUR:   As such.

MR JACKSON:   I am sorry, 1992, I should have said.

HIS HONOUR:   Yes, 1992.  Until that moment it was a federal Act but thereafter it was a deemed Territory Act.

MR JACKSON:   Yes, your Honour.  A question may arise as to the effect of the provisions of that kind in constitutional terms but that essentially is what occurred.  The 1992 Transfer Act, of course, made various other consequential amendments that I do not think I need to take your Honour to.

Your Honour, could I also say one other thing:  that the case may also raise the question of the relationship between section 122, on the one hand, and section 52(i) on the other.  What I mean by that is that section 52(i) is, of course, the provision that gives the Parliament the exclusive power to make laws – perhaps to take the exact words - - -

HIS HONOUR:   That is with respect to “The seat of government of the Commonwealth”.

MR JACKSON:   Yes, with respect to “The seat of government”, and whilst there has been, in the cases to which I have earlier referred, some debate about what is the seat of government, one of the arguments which we might seek to advance is that the seat of government is, in reality, the whole of the Australian Capital Territory.  I will leave aside the Jervis Bay Territory, but the whole of the Australian Capital Territory and that laws

made in relation to the Australian Capital Territory are necessarily made as well under section 52 as under 122.  The power, to put it shortly, cannot be given up.

Now, your Honour, we would submit that this is an appropriate case for the utilisation of the procedure of Order 55 rule 2.  First, the issues are of general importance; secondly, they are, of course, of importance to the applicant, and the third thing is that there are dicta of Justices which provide some support for the contentions which we seek to advance.

HIS HONOUR:   Yes.  Well, I think I should hear what Mr Gageler says, if anything, in opposition to the course that you have proposed.

MR GAGELER:   Very little, your Honour.  I do not oppose a direction under Order 55 rule 2.

HIS HONOUR:   Do you say you do not oppose?

MR GAGELER:   I do not oppose.  Mr Jackson, quite rightly, acknowledges that standing in his way are Spratt v Hermes and Capital TV v Falconer and the authorities upon which those authorities rely.  However, he is correct in pointing out that there is dicta in recent judgments of the Court which at least raise the question as to the continuing appropriateness of the reasoning in those judgments.

HIS HONOUR:   Is the discussion – was it in Newcrest - of Teori Tau relevant? In other words, leave aside the specific issues relating to the position of the judiciary, the relationship between section 122 and other provisions of the Constitution may also be relevant to the issue that is suggested for debate in the Court?

MR GAGELER:   Yes.  There is that decision in Newcrest.  There would also be the decision of the Court in Capital Duplicators [No 1] which would have a bearing on the issues.

HIS HONOUR:   Yes.  Well, I am minded to take the course that is proposed and to refer the matter to the Full Court in the terms of Order 55 rule 2.

MR GAGELER:   Your Honour, could I say something about the form of the order nisi? 

HIS HONOUR:   Yes.

MR GAGELER:   Of course, it will need to be amended to reflect the joinder of the Director of Public Prosecutions.  It will also need to be amended to reflect Mr Jackson’s seat of government argument which is, not at the moment, set out in the grounds.

HIS HONOUR:   Yes, that is true.  Well now, Mr Jackson, would you be prepared to, later in the day, have re-engrossed an order nisi which adds the Director of Public Prosecutions of the Australian Capital Territory as a respondent?

MR JACKSON:   Your Honour, the order nisi, if your Honour makes an order under Order 55 rule 2, will become irrelevant because the application would be to the Full Court for a final order.  The order nisi procedure is, really, the alternative in - - -

HIS HONOUR:   Do I have to direct that the application be made on notice of motion?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   I see, so that - - -

MR JACKSON:   And the application is that referred to - - -

HIS HONOUR:   It will be a fresh application and it will be in the terms that name the Director of Public Prosecutions and include, if you so decide, the point that you wish to raise concerning section 52(i).

MR JACKSON:   Your Honour, may I just say what we would propose in that regard.  What we would submit is that the case is one where we would file a notice of motion seeking a writ of habeas corpus joining, of course, the respondents to whom reference has been made.  We would then have either in an affidavit supporting it or perhaps as part of the notice of motion the grounds set out upon which we would seek the order and that would contain the appropriate grounds.  Now, your Honour, it is just a question of the time by which your Honour would require the notice of motion and any supporting material to be filed.

HIS HONOUR:   There would be an element of urgency in this given that it is a matter that affects the liberty of a citizen; an individual.  So that I have caused some inquiries to be made as to the first time that this matter could be returned before the Court and it seems unlikely this year that the Court will be proceeding to Hobart, there not being, at the moment, sufficient business for that purpose; in which event, the list that was assigned for that purpose would be transferred to a Canberra list and there would be time in that week, which is 22 March 1999, that being the first week that the matter could be returned, other cases having already filled the earlier dates.

So that would be the date on which I would be inclined to require that the matter be returned before the Full Court.  But, as the papers reveal, there is an outstanding application for special leave.  That, I take it, is from a conviction – from an order of the Full Court of the Federal Court, is it, or is it a Full Court of the Supreme Court of the Australian Capital Territory?

MR JACKSON:   The Federal Court, your Honour, yes.

HIS HONOUR:   And that raises also a constitutional question, as I see from the debate before Justice Gaudron when the matter was before her in August.  That is before a Court, I understand, in February, is that correct – that is to say the special leave application is coming before the Court in February?

MR JACKSON:   I was of the impression that a date had not yet been fixed for it.

KIRBY J:   I understand that there may be some possibility.  The point I am trying to make is this:  if this matter is to come before a Full Court, as it must by the reference of the requirement that the motion be made returnable before a Full Court, your client would not be allowed two opportunities to occupy the time of the Full Court of this Court.  Therefore, it would be expected that all things necessary would be done with a view to disposing of the application for special leave to appeal one way or the other at the earliest possible time so that if special leave is refused, there is no problem.  If special leave is granted, or there is some other process that brings before the Court a constitutional question, that could be consolidated with the proceedings before the Full Court which will be returned on the order that I make today.  But I would want to make it clear that there would not be two hearings.  You would not get two opportunities before this Court.

I understand that that may present a logistical problem in that there are 7,000 pages, as I see from the transcript before Justice Gaudron, of the trial.  But it surely should be possible, in discussion with Mr Gageler or the Director’s office to work out a way to relieve this Court and yourselves and the costs of the parties of reproducing all 7,000 pages.  Experience teaches that it is rare that you get referred to more than a dozen or so pages.  Perhaps there would be more in a case like this, but it ought to be possible, perhaps, for the special leave application to produce a book of the key pages that are relevant to the points that are going to be argued.

MR JACKSON:   Your Honour, my understanding of the matter was that the material for the special leave application was relatively short and that the matter would go ahead on that basis.  It would then be a question of what happens, of course, in relation to any appeal.

HIS HONOUR:   Is there a point in the special leave application except for what has been described as “the Mickelberg point”, that is to say whether fresh evidence can be received in an appeal to this Court?  Are there merits applications or is it simply whether or not some fresh evidence, not available at the trial but now available, is sought to be placed before this Court on the appeal from the order of the Full Federal Court?

MR JACKSON:   The case so far as the applicant is concerned is a question whether evidence obtained after the trial relating to his fitness to plead was admissible on that question after conviction.  Now, your Honour, the question is whether that is admissible in this Court.  So that raises a Mickelberg issue.  Your Honour, there may be other parts around it, and I just do not have the papers with me at the moment, but there may be other parts immediately around that but that is essentially the issue.  If the Court were to decide in his favour on that issue, then the matter would no doubt be remitted to be dealt with substantively.

HIS HONOUR:   That would not seem to require 7,000 pages of transcript.

MR JACKSON:   The enthusiasm for that, your Honour, I do not think is attributable to anybody here.  I am not sure it is said that Mr Gageler is in the other case.  Yes, he is.  But I am not certain how much paper is really required in this case.  There may be a little bit of transcript from our side; not very much as I understand it.

HIS HONOUR:   Yes.  Well, I do not want to give away secrets but my understanding is that the case will be returned sometime in February on the special leave application and if then special leave is granted, it would be possible - and the parties would then have to move in order to achieve the return of the appeal at the same time as the return of this application and any notices under section 78B of the Judiciary Act that are required by one or other or both of the proceedings would then be able to be given and it might be prudent that they be given, or at least in relation to these proceedings, as quickly as possible so that there is no possibility that the time in March will be lost.  I am conscious of the fact that this involves the liberty of Mr Eastman and, therefore, ought to be returned quickly.

HIS HONOUR:   The form of the order, therefore, is that I direct that the application now before me be made by notice of motion to a Full Court. 

I adjourn the application so that the notice of the application may be given accordingly. 

I order that the application, when filed, be returned before a Full Court in the week beginning 22 March 1999 on such day as the Registrar shall fix and notify to the parties. 

There is no question of costs in these proceedings?

MR JACKSON:   Well, maybe, your Honour.  Perhaps the best thing might be if your Honour were simply to reserve any question of costs, certifying for counsel, if your Honour thought it appropriate.

HIS HONOUR:   Yes.  I see Mr Gageler nodding.  I reserve the question of costs.  I certify that this was an appropriate matter in which counsel should appear in chambers. 

There is no other application?

MR GAGELER:   No, your Honour.

HIS HONOUR:   They are the orders of the Court. 

The Court will now adjourn until 10.15 am tomorrow morning.

AT 11.25 AM THE MATTER WAS ADJOURNED