Eastman v ACT Director of Public Prosecutions

[2002] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Registry  No C10 of 2002

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY

First Respondent

IAN PIKE

Second Respondent

ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

THE HONOURABLE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Fourth Respondent

Application for interlocutory orders

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 SEPTEMBER 2002, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR. R.C. REFSHAUGE, SC:   If the Court pleases, I am the first respondent.

HER HONOUR:   I should indicate immediately that one of the orders sought by the application that is presently before the Court was an order that the applicant be brought to Canberra for the hearing of this summons.  No such order has been made.  Accordingly, there will be no appearance by him and we will proceed to consider what should there be done in relation to the application shortly.  I should at this stage indicate that the Deputy Registrar has certified that she holds a letter from Kevin Holmes, solicitor for the Eastman Inquiry, advising that the second respondent will submit to any order of the Court save as to costs.  She also certifies that she has a letter from the Australian Capital Territory Government Solicitor advising that the third respondent does not intend to appear or make submissions at the hearing of this summons, and a submitting appearance has been filed by the fourth respondent submitting to the order of the Court save as to costs.

Now, Mr Refshauge, perhaps I should indicate at this stage that it seems to me that the appropriate way to proceed is for me to hear anything you have to say; to make arrangements for the transcript of what occurs today to be made available to the applicant and to give him 10 days to make written submissions in response.  Does that seem appropriate to you?

MR REFSHAUGE:   Yes, your Honour.

HER HONOUR:   Yes, very well.  That is the course I will follow.

MR REFSHAUGE:   Your Honour, I have filed an affidavit of myself of 26 September 2002 which annexes some material which I have obtained following the expression in my written submissions relating to the fourth order sought, namely Mr Eastman’s request that certain legal materials be provided to him, and I read that affidavit, if the Court pleases.

HER HONOUR:   Yes, I have read that affidavit.  Has that been served on Mr Eastman?

MR REFSHAUGE:   I have faxed a copy to him at Lithgow.  I would have to say, your Honour, that in other proceedings in which he has been involved he has made complaint that there has been either delay or interruption in service of material served at correctional centres.  So although I can say that the fax has been received, I cannot say, your Honour, that he has personally received it, although I would expect he has.  That can be investigated and I will undertake, if your Honour wishes, to file an affidavit as to the information I can obtain about service of that affidavit on him within, say, seven days.

HER HONOUR:   Yes.  Well, what I shall do I think is ensure that a copy is sent by the Court along with the transcript of today’s proceedings to Mr Eastman.  Yes.

MR REFSHAUGE:   Thank you, your Honour.  Other than that, your Honour, I principally rely on the written submissions that I have made.

HER HONOUR:   And have they been ‑ ‑ ‑

MR REFSHAUGE:   They have been filed, I believe.

HER HONOUR:   Have they been forwarded to Mr Eastman?

MR REFSHAUGE:   And they have also been forwarded to Mr Eastman.

HER HONOUR:   Yes.  Well, out of abundance of caution, they will also be sent by the Court to Mr Eastman.

MR REFSHAUGE:   Thank you, your Honour.  In summary, your Honour, our submission is that the Court has no power to make orders in terms of paragraphs 2 and 4, being the orders sought by Mr Eastman.  I have indicated in the written submissions that in my view if Mr Eastman is being deprived of his legal papers, then some efforts need to be made by the appropriate authorities, because that obviously interferes with the fair administration of justice, and my affidavit points to the fact that he clearly appears to have some legal papers and I shall continue to make inquiries to see if I can assist the Court.  But at the end of the day, other than perhaps an expression of wish, in my submission, the Court has no power to make an order in those terms.

HER HONOUR:   Well, I just wonder about that.  I know he is being held in a New South Wales gaol but presumably pursuant to some arrangements between the New South Wales and ACT authorities, and the ACT Attorney‑General is a party to these proceedings and submits as to any order of the Court that I – I think he submits – save costs.

MR REFSHAUGE:   I am not sure that he does, your Honour, but certainly there is no doubt ‑ ‑ ‑

HER HONOUR:   Well, no, sorry, he does not intend to appear or make submissions.

MR REFSHAUGE:   That is right.

HER HONOUR:   Well, why can I not order the Attorney‑General of the ACT to take all steps within his power to ensure that those papers are available to Mr Eastman?

MR REFSHAUGE:   There is no reason, your Honour, and I would not oppose that, although the difficulty, as I understand it, is that under the Removal of Prisoners Act of the ACT – and I have made reference to the relevant section in my written submissions – the statutory provision is that a prisoner who is sentenced to a term of imprisonment in the ACT is transferred pursuant to that Act to New South Wales and is there to be kept and dealt with in accordance with the regulations and the statutory provisions of that jurisdiction and is treated as though – and, I am sorry, I have not got the precise wording here – he were sentenced to a term of imprisonment by a New South Wales court.

So whilst I do not have any submissions to the contrary to the order that your Honour proposes, I simply say that the limit on what the Attorney can do would be persuasive rather than legal and certainly those efforts, as your Honour will see from my affidavit, are going on.  I do not say that your Honour should not reinforce that with an order of the Court.

HER HONOUR:   Well, the efforts do not seem to have been fruitful though, do they?

MR REFSHAUGE:   Only in part, your Honour.

HER HONOUR:   If I read the annexure “A”, all I am told is that they “can be returned . . . if he requests” – well, I would have thought this ought fairly be treated as such a request ‑ ‑ ‑

MR REFSHAUGE:   Absolutely, your Honour.

HER HONOUR:   ‑ ‑ ‑ although it does not seem as though the Department of Corrective Services is treating it as such, and the issue will then be “storage and the access to the papers . . . during and after his court case”.  Now, that is hardly sufficient.  It has to be before the court case, does it not?

MR REFSHAUGE:   Absolutely, your Honour.

HER HONOUR:   Now, that is by far from a satisfactory response to the issue, is it ‑ ‑ ‑

MR REFSHAUGE:   Absolutely, your Honour, and this was not intended to be submitted to your Honour as a satisfactory response but simply ‑ ‑ ‑

HER HONOUR:   Well, what I am to do?  What I am to do?  He is to have these papers, is he not?

MR REFSHAUGE:   Well, your Honour, the difficulty is that the agency that is to administer the issue of whether he needs all the papers and whether he should have all 10 cartons is not before your Honour.

HER HONOUR:   I know that but it seems to me that it would be a fairly easy step to have them brought before me.

MR REFSHAUGE:   And I have no problem with that, your Honour.

HER HONOUR:   I mean, if need be, Mr Eastman can seek a further summons against them.

MR REFSHAUGE:   Well, he could and quite frankly, your Honour, it would not be in my interests or proper to delay for a technical reason such as that.  All I am simply saying to your Honour is that in principle – and, as I have set out in my submissions, I accept that Mr Eastman ought to have all the legal papers he needs properly to prepare himself and conduct any litigation that he needs to or wishes to conduct, and I would do everything in my power to facilitate that and I would be assisted, quite frankly, by an order in terms of the order that your Honour proposed.

What I am simply saying to your Honour is that there may well be physical or other real limitations of which I am not aware, because I do not administer the correction system and, as I have explained to your Honour, there is some statutory inhibition in the ACT authorities having direct control or direction over the incarceration of ACT prisoners, and I am simply saying to your Honour, as I think I am duty bound to do, that there may be some issue that prevents the full 10 boxes being returned to him and retained for the whole period until the special leave application.  That seems to me unlikely and it would obviously need substantial evidence and argument, but I am not in a position, and I do not purport to be in a position, to answer for that agency or that authority.  I simply bring that to the Court’s attention and I say no more than that.

HER HONOUR:   It is obviously a far from satisfactory situation.

MR REFSHAUGE:   Absolutely, your Honour.  I accept that.

HER HONOUR:   And perhaps the Attorney‑General of the ACT needs to give further consideration to the terms of that arrangement.

MR REFSHAUGE:   Indeed, your Honour.

HER HONOUR:   Yes.

MR REFSHAUGE:   Your Honour, the only other matter that I did raise in my written submissions, and I may be able to make some further progress but have not as yet, is in relation to the question of Mr Eastman’s legal representation so far as the special leave application is concerned.  There is some difficulty in that the Legal Aid Act of the ACT, section 92, provides a secrecy provision so that, in effect, until the Commission comes on the record, the information that is available is somewhat limited.

Can I simply say to your Honour that in general discussions about the special leave application, and not about Mr Eastman’s affairs, if one can make that distinction, it is clear to me that he would be entitled to legal aid should he make application and I have no doubt that, again, based on my experience of him, that he will make, or has made, application and I think legal aid would be available to him, but at this stage I have to say that he is not formally represented but that position may be able to be clarified within the time limit that your Honour proposed for him to provide written submissions.  If you would give me leave to provide further information on that issue in the meantime, then that may be of assistance to the Court.

HER HONOUR:   Yes.  Now, orders ‑ ‑ ‑

MR REFSHAUGE:   In relation to order 1, that has been dealt with, your Honour.  Order 2, in my submission – and I rely on what fell from Justice McHugh on the last occasion – it is my submission that your Honour does not have jurisdiction to make an order in those terms.  Your Honour, order 3 is a matter that the Rules of Court and the further information relating to representation may assist the Court with, and order 4, I have indicated that I have no objection and do not wish to be heard further other than the matters I have already put to your Honour in relation to the proposed order that your Honour suggested.

HER HONOUR:   Yes, thank you.

MR REFSHAUGE:   If the Court pleases.

HER HONOUR:   Thank you, Mr Refshauge.  Well, what I propose to do is formally order that a transcript of today’s proceedings together with the affidavit of Richard Christopher Refshauge of 26 September 2002 and the submissions of the first respondent dated 25 September 2002 be forthwith forwarded by this Court to Mr Eastman by fax, to be accompanied by a further facsimile communication to the prison authorities indicating that it is my wish that the documents be made available to him forthwith. 

The second order will be that the Attorney‑General for the Australian Capital Territory take all such steps as are within his power to ensure that Mr Eastman has access to the papers referred to in his chamber summons dated 4 September 2002.  Three, I direct the Registrar to forward a copy of this transcript to the relevant prison authorities together with a communication that it is my wish that Mr Eastman be provided with his documents.  If he is not so provided, consideration will have to be given to what further or other steps can be taken.

I propose to adjourn the matter until 8 October at a time to be advised by the Registry, at which stage I should like to be informed as to what arrangements have been made for Mr Eastman to have his papers.  I grant Mr Eastman a period of 10 days from today’s date to file detailed written submissions in answer to the matters raised in Mr Refshauge’s affidavit and submissions and in oral submissions today. 

Those submissions should direct attention to these matters.  The first thing, whether or not Mr Eastman is eligible for legal assistance through the ACT legal aid system.  If he is, clearly that is a matter that will impinge directly on orders 2 and 3 as sought by him.  The submission should also direct attention to whether, if he is not eligible for legal aid, it would be sufficient in the circumstances to allow for somewhat lengthier written submissions than is normally the case.  In this respect, I simply draw to Mr Eastman’s attention that it is the written submissions that are the primary focus of this Court in special leave applications and not oral submissions.

Now, Mr Refshauge, I will fix a further date on 8 October.

MR REFSHAUGE:   Your Honour, I am content with that but I may personally not be available.  If not, I will certainly have written material and someone will be representing me on that day.

HER HONOUR:   Yes.  Now, I take it that this is not a matter in which anybody would be interested in costs?

MR REFSHAUGE:   No, your Honour.

HER HONOUR:   So it is not even necessary for me to certify for the attendance of counsel?

MR REFSHAUGE:   No, your Honour.

HER HONOUR:   Very well, thank you.  Look, that date might not be 8 October.  Sorry, the date by which I require a response with respect to the documents that Mr Eastman wishes is Tuesday of next week.

MR REFSHAUGE:   That will be 1 October.

HER HONOUR:   That is 1 October and the Registry will inform you of the time at which this matter will be listed on that date.  On that date I will give a further indication of the date on which the matter will be listed, but the 10 days in which Mr Eastman is to provide his submissions runs from today’s date, so that his submissions should be filed in the Court – and it will be 10 working days – well, 10 days, I am sorry.  They should be filed by 10 October I will say.

Now, is it necessary for me to make a direction that he be provided with every facility that is necessary to enable those submissions to be made?

MR REFSHAUGE:   Your Honour, having no control over those authorities, I would not submit to the contrary, although I have no doubt that what your Honour has said already, which of course your Honour would appreciate I will emphasise through what offices I have, would make that crystal clear, but it will be on the transcript, your Honour.

HER HONOUR:   I will simply have it recorded that it is my wish that he be provided with all necessary facilities to have his written submissions available.

MR REFSHAUGE:   So the matter will be adjourned until a time to be fixed on 1 October?

HER HONOUR:   On 1 October, yes, by which stage, I should have thought ‑ ‑ ‑

MR REFSHAUGE:   We should know about ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ if arrangements are going to be made, they should be well underway by then.

MR REFSHAUGE:   Absolutely, and I expect to be in a position to be here and advise your Honour about that.  Thank you.

HER HONOUR:   Yes, please.  Thank you.  The Court will now adjourn until a time to be fixed on 1 October.

AT 9.55 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 1 OCTOBER 2002