Eastman v Besanko - [2010] ACTCA 15

DAVID HAROLD EASTMAN v THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO; ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY [2010] ACTCA 15 (17 August 2010)

APPEAL – appeal from order dismissing application for judicial review of refusal to order inquiry into appellant’s conviction under s 424 Crimes Act 1900 (ACT) – whether refusal to order inquiry is a reviewable decision – whether proper construction of “doubt or question” was applied in refusing to order inquiry – whether refusal to order inquiry was affected by Wednesbury unreasonableness – no errors found – appeal dismissed.

PRACTICE AND PROCEDURE – whether written submissions received from self-represented litigant after the conclusion of a hearing should be considered – no prior leave granted to file further submissions – need to avoid preferential treatment for self-represented litigants – written submissions not considered.

ADMINISTRATIVE LAW – judicial review – application for judicial review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) of refusal to order inquiry – whether refusal to order inquiry a decision – if refusal was a decision, whether it was a decision “made ... under an enactment” – application of Griffith University v Tang test – refusal to order inquiry did not confer, alter or otherwise affect legal rights or obligations – refusal to order an inquiry into conviction not a reviewable decision.

Judiciary Act 1903 (Cth), s 30B

Seat of Government Acceptance Act 1909 (Cth), s 6

Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 3, 5, 17, 20, 21
Crimes Act 1900 (ACT), Pt 20, ss 422, 423, 424, 425, 426, 428, 429, 430, 431, 475
Crimes (Sentence Administration) Act2005 (ACT), s 313 et seq
Inquiries Act 1991 (ACT)
Legislation Act 2001 (ACT), Pt 14.2, ss 2, 7, 138, 139, 141, 142
Supreme Court Act 1933 (ACT), s 34B
Criminal Appeal Act 1912 (NSW)
Criminal Laws Amendment Act 1883 (NSW), ss 383, 384

Court Procedures Rules 2006 (ACT), Pt 5.4 r 5412(2)
Explanatory Memorandum for the Crimes Legislation Amendment Bill 2001 (ACT)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barton v Walker [1979] 2 NSWLR 740
Brookfield Multiplex Ltd v International Funding Litigation Partners Pte Ltd (2009) 180 FCR 11
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 750
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
David Eastman v the Honourable Justice Anthony James Besanko (2009) 223 FLR 109; [2009] ACTSC 10
Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588
Director of Public Prosecutions (ACT) v Eastman (2002) 118 FCR 360
Eastman v Australian Capital Territory (2008) 227 FLR 279
Eastman v ACT; Eastman v Miles [2008] HCASL 553
Eastman v Besanko [2010] ACTSC 15
Eastman v Besanko [2010] ACTSC 16
Eastman v Besanko [2009] ACTSC 144
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Eastman v Miles (2007) 210 FLR 417
Eastman v Miles (2004) 181 FLR 418
Eastman v R (2008) 248 ALR 149
Eastman v R [2008] HCASL 550
Eastman v R (2000) 203 CLR 1
Eastman v R (1997) 76 FCR 9
Griffith University v Tang (2005) 221 CLR 99
Malouf v Malouf (2006) 65 NSWLR 449
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Jarman & Others; Ex parte Cook (1997) 188 CLR 595
Re The Goulburn Correctional Centre; Ex Parte Eastman (1999) 200 CLR 322
Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor (1995) 56 FCR 50
Shepherd v The Queen (1990) 170 CLR 573

Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed)
Sir James Fitzjames Stephen, A History of the Criminal Law of England
Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman, 6 October 2005
Decision and Reasons in relation to an Application for an Inquiry under Part 20 of the Crimes Act 1900 (ACT), 4 April 2008

Shorter Oxford Dictionary (6th ed, 2007)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 of 2009
No. SC 362 of 2008

Judges: Penfold, Dowsett and Graham JJ
Court of Appeal of the Australian Capital Territory
Date: 17 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2009
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HAROLD EASTMAN
Appellant

AND:THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
Respondent

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervenor

ORDER

Judges:  Penfold, Dowsett and Graham JJ
Date:  17 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant pay the Intervenor’s costs.

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2009
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HAROLD EASTMAN
Appellant

AND:THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
Respondent

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervenor

Judges:  Penfold, Dowsett and Graham JJ
Date:  17 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

Introduction

Assistant Commissioner Colin Winchester of the Australian Federal Police was shot dead in Canberra on 10 January 1989. David Eastman was found guilty of his murder in November 1995 and sentenced to life imprisonment. Since then, there have been a number of appeals and other applications made in relation to Mr Eastman’s conviction (described by Dowsett J at [34] to [37] below), but to date the conviction stands.

In February 2005 Mr Eastman sought an order under s 422 of the Crimes Act 1900 (ACT) for an inquiry into his conviction, and in April 2008 Besanko J, an additional judge of the ACT Supreme Court, announced that he had decided not to order an inquiry.

Under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act), Mr Eastman sought judicial review of the refusal by Besanko J to order an inquiry. In February 2009 Edmonds J, also an additional judge of the ACT Supreme Court, dismissed Mr Eastman’s application. Mr Eastman has appealed from that decision.

I have had the opportunity to read in draft the carefully-argued judgments of Dowsett and Graham JJ, and rely as indicated on their more detailed descriptions of the background to this matter and the issues that this Court is asked to address.

Grounds of appeal

Following a process detailed in the judgment of Graham J at [181] to [188] below and in the judgment of Dowsett J at [41] to [47] below, the grounds of appeal were agreed to be, in effect, that Edmonds J had erred in finding that the decision made by Besanko J on 4 April 2008 under section 424 of the Crimes Act:

(a) was not a decision to which the ADJR Act applied;

(b) was not a decision that entailed an exercise of power that was so unreasonable that no reasonable person could have so exercised the power; and

(c) was not a decision involving errors of law (or otherwise contrary to law) as to the proper construction of the expression “doubt or question” as to the appellant’s guilt (as used in ss 422(1)(a), (b) and (c) of the Crimes Act).

Receipt of further submissions

First, before considering the grounds of appeal, I note that after the Court of Appeal had reserved its decision, Mr Eastman sought to make further written submissions without leave to do so having been granted or even sought during the hearing.

In reliance on the descriptions provided by Dowsett and Graham JJ at [53] to [56] and [205] to [211] respectively of the circumstances in which Mr Eastman sought to lodge written submissions after judgment had been reserved and after he had expressly declined to take any further part, or to make any further submissions, in the hearing, I agree, for the reasons specified by Dowsett and Graham JJ at [58] to [63] and [212] to [221] below respectively (except that I have not looked at the submissions), that those further written submissions should not be received.

Appeal ground (a): Was Besanko J’s decision subject to judicial review?

Next, I consider that Edmonds J was correct in finding that Besanko J’s decision was not subject to judicial review under the ADJR Act. For the reasons set out below, I consider that the decision was not a “decision under an enactment” as defined in Griffith University v Tang (2005) 221 CLR 99 (Tang) and that there is a clear legislative intention that it not be a reviewable decision.

Was there a “decision ... made ... under an enactment”?

The phrase used in the ADJR Act definition of “decision to which this Act applies” (set out in the Dictionary to the ADJR Act), namely “decision ... made ... under an enactment”, would on its face appear to describe exactly a decision made by the Supreme Court under s 424(1) of the Crimes Act to order an inquiry. I shall return shortly to the question whether a refusal to order an inquiry is such a decision.

However, assuming for the moment that Besanko J’s conclusion that there was no occasion for him to order an inquiry was a decision for ADJR Act purposes, judicial interpretation of the phrase “made ... under an enactment” has established that it is not enough that the decision in question should be “expressly or impliedly required or authorised” by the enactment; as set out by Gummow, Callinan and Heydon JJ in Tang at [89]:

... the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. ... It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

The meaning of the requirement that “in that sense the decision must derive from the enactment” emerges more clearly from earlier parts of the joint judgment in Tang, in particular the following (at [79]-[81]):

The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
If the decision derives its capacity to bind from contract or some other private law source, then the decision is not “made under” the enactment in question. [references omitted] [emphasis added]

Interpreted by reference to the comments set out at [11] above, the second element of the test may be expressed as in turn having two elements, such that the whole test is as follows:

(a) the decision must be expressly or impliedly required or authorised by the enactment;

(b) the decision must itself confer, alter or otherwise affect legal rights or obligations (whether existing or otherwise and whether or not owing their existence to the enactment); and

(c) the effect on legal rights or obligations must itself derive from the enactment.

In this case I am satisfied (for the reasons set out by Edmonds J in the decision now appealed from, David Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10 at [12] to [16] and summarised in the judgment of Graham J at [201] below) that if Besanko J made a decision, that decision was authorised by the enactment concerned, but:

(a) that the decision not to order an inquiry did not “itself confer, alter or otherwise affect legal rights or obligations”; and

(b) that the decision, therefore is not, within the criteria set down in Tang, a “decision made under an enactment”.

I note in passing that while the making of an application to the Supreme Court for an inquiry in relation to a particular doubt or question does preclude the ordering of an inquiry pursuant to a subsequent application in relation to that doubt or question (s 422(1)(f) of the Crimes Act), there does not appear to be any similar restriction, arising out of an earlier application or call for an inquiry, on the power of the Executive under s 423 to order an inquiry.

Was there a “decision” at all?

As mentioned at [9] above, there is a question in my mind whether what Besanko J did with the application for an inquiry even amounted to a decision for ADJR Act purposes.

Counsel for the Intervenor conceded that Besanko J had made a decision not to order an inquiry without conceding that it was a decision to which the ADJR Act applied. However, I am not convinced that s 3A(1)(a) of the ADJR Act, which defines “the making of a decision” to include “making ... or refusing to make an order” is effective to turn deciding not to order an inquiry, or refusing to order an inquiry, into the making of a decision under Pt 20 of the Crimes Act.

It is useful to consider this issue together with the submission made by counsel for the appellant, before his retainer was terminated, that the right potentially affected by any flaw in Besanko J’s decision-making process was in fact the right to have the application for an inquiry dealt with according to law. This submission was significant given the comments of Edmonds J mentioned at [13] above about the effect of Besanko J’s conclusions on Mr Eastman’s “rights” in relation to an inquiry and given the provisions of s 425 of the Crimes Act.

Several aspects of Pt 20 of the Crimes Act seem to me to indicate not only that, as I have already concluded at [13] above, the decision does not affect any legal rights or obligations, but also that the enactment itself does not confer any rights or obligations on an applicant, including in particular that it does not confer any rights in relation to how the application is dealt with once it has been made. Rather, Pt 20 emphasises that once the application has been made, the applicant has no further role or significance in any dealings with the application.

First, I note the scope under s 424(1) of the Crimes Act for an application to be made “by someone else on the convicted person’s behalf”. It is not clear what “on the convicted person’s behalf” actually requires, or whether such an application could be made without the consent of the convicted person, but the absence from Pt 20 of any further role for the applicant as such in the inquiry process suggests that the role of the applicant under s 424(1) is purely to bring the matter before the Supreme Court, and in particular does not include acquiring any ongoing rights or obligations in relation to the processes thereby set in train.

Secondly, s 422(1)(f) of the Crimes Act, in ruling out the ordering of an inquiry if there has been a previous application in relation to the doubt or question concerned, whether or not that previous application was made by the current applicant or by someone else, suggests that whatever the legal consequences of an application in relation to a particular doubt or question, they do not have any special significance in relation to the applicant.

Thirdly, I note the absence of any explicit provision for the applicant to be heard, or even to have written submissions taken into account, on consideration of the application. There appears to be no obstacle to the application being accompanied by written submissions, and I do not consider that s 424(3) of the Crimes Act, in specifying that the Supreme Court is permitted to consider written submissions from the Attorney-General or the Director of Public Prosecutions or both, implies that an applicant’s original submissions are not to be considered; however there is no provision for the applicant to make submissions in reply.

Fourthly, s 422(3) of the Crimes Act makes it clear that in setting limits on the scope of any inquiry it orders, the Supreme Court is not in any way restricted by anything in the application.

Finally, there is no requirement for the applicant to be notified of anything in relation to the Supreme Court’s consideration of the application, and in particular there is no concept of the application being refused or of any refusal being notified; this contrasts with the requirement in s 430(3) of the Crimes Act that the convicted person (who may or may not have been the applicant) must receive a copy of any order made by the Full Court of the Supreme Court after considering the report of a board that has conducted the inquiry.

The complete absence of the applicant under s 424(1) of the Crimes Act as a player in any of the consequences of that application is the basis on which I reject counsel’s submission that s 424 confers on an applicant a right to have an application dealt with according to law. It is also the basis on which I incline to the view, without needing to decide the question for present purposes, that the only “decision” that could be made under s 422 is a decision to order an inquiry, not a decision not to do so (whether a decision to order an inquiry is itself susceptible to judicial review under the ADJR Act is a separate question on which I make no comment).

These observations about whether there is a “decision” not to order an inquiry are consistent with those made by Gray J in Eastman v Miles (2004) 181 FLR 418 at [49] to [53] about the operation of the then s 475 of the Crimes Act, a predecessor of Pt 20 which was replaced by the current provisions (initially with different numbering) in 2001, and the availability of judicial review in relation to the power conferred by that section. Of particular relevance is what Gray J referred to as “pertinent” reasoning by Gummow J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor (1995) 56 FCR 50 at 90, who said in relation to the Secretary’s power to give a direction on becoming aware of certain things:

One is returned to the fundamental point that without imputing to the Secretary an awareness which did not exist, it could not be said that the ground had been laid for the exercise of the power to direct that the trials be stopped. If the power was not exercisable at all, then the omission so to do could not, within the meaning of the ADJR Act, involve a refusal to make a decision. Otherwise, the ADJR Act would involve the Court in a process of review in which the complaint was that the decision-maker failed to make a decision in exercise of a power which was, in truth, not open for exercise by the decision-maker.

Gray J’s approach, and my conclusion about whether there is a decision not to order an inquiry, also seem to be consistent with Dowsett J’s proposition, with which I agree, at [119] below that if a doubt or question identified in an application for an inquiry is resolved as a result of the Court’s evaluation of the available material, then no doubt or question remains and there can be no inquiry.

Was the legislation intended to give a right to judicial review?

The relevant provisions of the Crimes Act were enacted in 2001, before the High Court’s decision in Tang, but that decision followed a line of reasoning dating back some years requiring that a “decision under an enactment” affects legal rights or obligations. I have no doubt that s 425(1) of the Crimes Act, in conjunction with the other aspects of Pt 20 already mentioned, was intended 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. My conclusion is consistent with, but does not need to rely on, the statement in the Explanatory Memorandum for the precursor of s 425 (Explanatory Memorandum for the Crimes Legislation Amendment Bill 2001, page 13, in relation to proposed s 557E) that the purpose of the section was “to make it clear that decisions about ordering an inquiry are purely discretionary and are not subject to appeal or review”.

Conclusion

Accordingly, I consider that Edmonds J was correct in finding that Mr Eastman’s application was not competent.

Appeal ground (b): the reasonableness of Besanko J’s decision

At the appeal hearing Mr Eastman, when pressed, made a grudging attempt to provide particulars of this appeal ground by referring the Court to material from earlier proceedings, but in the end he declined to argue the unreasonableness ground at the hearing. As indicated at [7] above, Mr Eastman’s belated submissions, which among other things seek to pursue the unreasonableness ground, are not to be received. In these circumstances, I consider that it is neither necessary nor desirable to express any views on this ground.

Appeal ground (c): the proper construction of “doubt or question” as to guilt

As to the meaning of “doubt or question” as to guilt, I agree with Dowsett J’s conclusions (and the reasons for them) that:

(a) Besanko J did not misconstrue the words “doubt or question” (see [119] below);

(b) Mr Eastman’s submissions on the distinction between guilt in fact and guilt as evidenced by conviction must fail to the extent that they depend on the allegation of non-disclosure by the prosecution of material going to the credit of a key Crown witness, because there is no evidence of any non-disclosure affecting material that was available to the prosecution at a relevant time (see [123] below); and

(c) in this case there is no distinction between guilt in fact and guilt as evidenced by conviction (see [126] below) (but without expressing any view on whether such a distinction could ever be significant).

Orders

Accordingly, I find that the first and third grounds of appeal fail, and that the second ground has not been made out.

The orders I would make are:

(a) that the appeal be dismissed; and

(b) that the appellant pay the Intervenor’s costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 17 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2009
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HAROLD EASTMAN
Appellant

AND:THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
Respondent

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervenor

Judges:  Penfold, Dowsett and Graham JJ
Date:  17 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

DOWSETT J:

Background and history

On 10 January 1989, Colin Stanley Winchester, an Assistant Commissioner of the Australian Federal Police and the highest ranking police officer in the Australian Capital Territory (the Territory), was found dead in the driver’s seat of his car. The car was parked near his home in the Canberra suburb of Deakin. He had been shot twice at close range – once in the back of the head, and once in the face on the right hand side. An inquest into his death commenced in May 1989, resulting in an open finding. The inquest was re-opened in November 1992 and further evidence was heard. As a result, on 24 December 1992 the appellant, David Harold Eastman, was committed for trial on a charge of murder. The trial commenced on 16 May 1995 before Carruthers AJ and a jury. On 3 November 1995 the appellant was found guilty. He was sentenced to imprisonment for life. The appellant has sought, in numerous ways, to have his conviction set aside. A history of these proceedings appears below.

Criminal Appeals

Following his trial and conviction, the appellant appealed to the Full Court of the Federal Court. That appeal was dismissed: Eastman v R (1997) 76 FCR 9 (Eastman (FC)). The High Court granted special leave to appeal from that decision, which appeal was heard together with a constitutional challenge. The appellant was unsuccessful in both proceedings: Eastman v R (2000) 203 CLR 1 (Eastman (HC)) and Re The Goulburn Correctional Centre; Ex Parte Eastman (1999) 200 CLR 322. The appellant later moved in the Federal Court for an order that his appeal be re-opened. The motion was denied by the Full Court of the Federal Court: Eastman v R (2008) 248 ALR 149. An application for special leave to appeal to the High Court was refused: Eastman v R [2008] HCASL 550.

Inquiries

In June 2000, the appellant applied for a judicial inquiry pursuant to s 475 of the Crimes Act 1900 (ACT). On 7 August 2001 Miles CJ granted his application and ordered that a Magistrate conduct the inquiry. The Director of Public Prosecutions (the DPP) challenged that decision in two separate proceedings in this Court. In the first the DPP sought a declaration that the proposed inquiry was beyond the power conferred by s 475. In the second the DPP sought, pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act), review of the decision to order the inquiry. Both applications failed at first instance: Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588. An appeal against the decision concerning judicial review was allowed by a majority of the Full Court of the Federal Court: Director of Public Prosecutions (ACT) v Eastman (2002) 118 FCR 360. That decision was reversed by the High Court: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 (Eastman (ADJR-HC)).

Ultimately, Miles CJ conducted an inquiry into the question of the appellant’s fitness to plead at his trial, concluding that save for one short period, the appellant was fit to plead. Accordingly, his Honour did not recommend any executive action to set aside the conviction. His Honour’s report is described as Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman and is dated 6 October 2005. Miles CJ resigned as a member of this Court at some time prior to the delivery of his report, but that fact has no present relevance.

The appellant challenged the outcome of the inquiry in a number of ways. First, he unsuccessfully sought, pursuant to the ADJR Act, to challenge the decision by Miles CJ to limit the scope of the inquiry to the issue of fitness to plead: Eastman v Miles (2004) 181 FLR 418. Subsequent to the inquiry, he unsuccessfully sought review of the final report and recommendations of Miles CJ: Eastman v Miles (2007) 210 FLR 417 (on appeal: Eastman v Australian Capital Territory (2008) 227 FLR 279; special leave to appeal to the High Court refused: [2008] HCASL 553). He also unsuccessfully sought review of the decision of the Executive not to take any further action as a result of the report: Eastman v Attorney-General (ACT) (2007) 210 FLR 410 (on appeal: Eastman v Australian Capital Territory (2008) 227 FLR 262; special leave to appeal to the High Court refused: [2008] HCASL 553).

Section 475 has been repealed and replaced by Pt 20 of the Crimes Act. The Pt 20 regime is similar in concept to the former s 475 in that, broadly speaking, it provides a mechanism for an inquiry into a conviction if there is a “doubt or question” concerning the person’s guilt. Notwithstanding the previous inquiry pursuant to s 475, it is accepted that the appellant was entitled to apply pursuant to the new regime. On 2 February 2005 he made such an application. That application was heard by Besanko J, the first respondent in this matter. On 4 April 2008 his Honour concluded that an inquiry should not be ordered. His Honour’s report is described as Decision and Reasons in relation to an Application for an Inquiry under Part 20 of the Crimes Act 1900 (ACT).

Judicial Review

On 6 May 2008 Mr Eastman sought review of that decision under the ADJR Act and, presumably by way of an order pursuant to s 34B of the Supreme Court Act 1933 (ACT), “prerogative relief”. The ground of the application was 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.

The Attorney-General intervened in the proceedings. The application was heard by Edmonds J on 7 and 8 July 2008, the appellant being self-represented. On 18 February 2009, his Honour ordered that the application be dismissed and that the appellant pay the Intervenor’s costs: David Harold Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10. His Honour concluded that the decision of Besanko J had not altered or otherwise affected any right of the appellant, and that the decision was therefore not “made under an enactment” for the purposes of the ADJR Act. His Honour concluded that the claim to prerogative relief similarly failed because the decision did not have any legal effect or legal consequences. As to the “merits” of the case, Edmonds J concluded that no aspect of the reasoning process adopted by Besanko J demonstrated “any exercise of power which can be described as being so unreasonable that no reasonable person could have so exercised the power.”

Notice of appeal

By a notice of appeal filed on 17 March 2009 the appellant appealed from the decision of Edmonds J. The purported grounds of appeal were then as follows:

5 … Justice Edmonds erred in finding that the decision made by Justice Besanko on 4th April 2008 under section 424 of the A.C.T. Crimes Act 1900 was not a decision:-
(a) to which the A.C.T. Administrative Decisions (Judicial Review) Act 1989 applied; and
(b) which entailed an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power.

The appellant sought an order that the matter be referred back to Besanko J for reconsideration and decision according to law. When he filed the notice of appeal, he was unrepresented. However, on 24 April 2009, a notice of solicitor acting was filed by Peter Alan Jackson of Jackson Lalic Lawyers.

Amended notice of appeal

On 22 October 2009 the appellant “lodged” an amended notice of appeal which omitted the second ground contained in paragraph 5(b) of the original notice of appeal (the unreasonableness ground) and inserted in lieu a ground alleging that Edmonds J erred in finding that the decision of Besanko J was not a decision:

involving errors of law (or otherwise contrary to law) as to the proper construction of the expression ‘doubt or question’ as to the Appellant’s guilt, as that expression is used in ss 422(1)(a), (b) and (c) of the Crimes Act 1900 ACT.

The amended notice of appeal also sought:

A declaration that the first defendant made errors of law or otherwise acted contrary to law.

Under the rules, the appellant could only amend his notice of appeal by leave. Such leave has not been granted. At the hearing of the appeal, the appellant initially appeared by counsel. When the Court sought to identify the grounds of appeal upon which the appellant wished to rely, counsel informed the Court that notwithstanding the purported amended notice of appeal and counsel’s outline of argument dated 19 October 2009, Mr Eastman did not wish to abandon the unreasonableness ground.

Counsel applied for leave to amend the notice of appeal by adding the proposed ground 5(b) from the purported amended notice of appeal as ground 5(c), and inserting in paragraph 6 the proposed declaration as an additional order sought by the appellant. The effect was that the unreasonableness ground remained intact. Leave to amend the notice of appeal was granted shortly after 2.30 pm on 22 October 2009, the first day of the hearing. As finally amended the grounds were that:

5… Justice Edmonds erred in finding that the decision made by Justice Besanko on 4th April 2008 under section 424 of the A.C.T. Crimes Act 1900 was not a decision:-
(a) to which the A.C.T. Administrative Decisions (Judicial Review) Act 1989 applied;
(b) which entailed an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power; and
(c) involving errors of law (or otherwise contrary to law) as to the proper construction of the expression ‘doubt or question’ as to the Appellant’s guilt, as that expression is used in ss 422(1)(a), (b) and (c) of the Crimes Act 1900 ACT.

Counsel for the appellant indicated that he did not propose to argue the unreasonableness ground, and that the appellant would personally present that aspect of the case. The Court agreed to that proposal. It was said that the appellant’s submissions on that aspect would take about 45 minutes. The estimate was later increased to one hour.

Prerogative relief

To the extent that the appellant sought prerogative relief, he was bound to fail. In Re Jarman & Others; Ex parte Cook (1997) 188 CLR 595 at 610, the High Court held that a superior court of record cannot send a prerogative writ to one of its members. Although certain provisions of Pt 20 make the matter rather more complex than was the position in that case, I consider that this Court should follow that decision. In any event, I do not understand the claim to prerogative relief to have been pressed on appeal. Further, the availability of such relief would depend upon the appellant’s establishing the same matters as he would have to establish in order to obtain relief pursuant to the ADJR Act.

The first day of hearing

At approximately 4.04 pm on 22 October 2009, the first day of the hearing, Mr Eastman terminated the retainer of his counsel, Dr Renwick. Dr Renwick was, at that time, presenting his submissions on the grounds in paragraphs 5(a) and (c) of the amended notice of appeal. Mr Jackson’s instructions were also withdrawn. Both were allowed to withdraw. I should set out the circumstances which apparently led to the appellant’s dismissal of his legal advisers.

The transcript suggests that the appellant may have been dissatisfied with the way in which his counsel and, perhaps, the Court were dealing with an application to extend orders made by Higgins CJ on 7 October 2009, relating to the appellant’s conditions of imprisonment. Those orders were due to expire at midnight on the first day of the hearing. Dr Renwick was addressing the matter (commencing at TS 71 l 33) when, at TS 75 l 16, the appellant interjected. The following exchange ensued:

Appellant:I’m opposed to interject, but we’re spending so much on time on this. I believe I could answer all of these objections before her Honour Penfold J, including her jurisdiction to make the orders in a general jurisdiction as a Supreme Court judge. Confirmed by a previous Court of Appeal ...(indistinct)...
Penfold J:All right. Thank you, Mr Eastman. Well, thank you for that, Mr Harris ‑ ‑ ‑

…
Penfold J:‑ ‑ ‑ because that does … change the environment that we’re operating in. Dr Renwick, is there anything you want to add?
Dr Renwick: No, except that my instructions are that Mr Eastman wishes the orders to continue until Monday. But I don’t wish to say anything more.

Penfold J: Until Monday?
Dr Renwick: Apparently Mr Eastman thinks it’s possible that he may wish to put in some written submissions in addition until Monday.

Penfold J: But no one’s given any leave ‑ ‑ ‑
Dr Renwick: I understand that.
Penfold J: ‑ ‑ ‑ for anyone to put in any written submissions.
Dr Renwick: I understand that.
Penfold J:So at the moment - the most we would be contemplating at the moment would be recognising that we’re coming on tomorrow and that Mr Eastman possibly has some work to do overnight.

Dr Renwick: There’s nothing more I can say, your Honour.
Penfold J: All right. Thank you. We’ll just go again briefly.

After an adjournment, the hearing resumed at 3.44 pm. Penfold J stated (TS 76 ll 17-19) that “in the light of the instructions that Mr Harris has passed on to the court, we don’t propose to deal further today with the request for an extension of the Chief Justice’s order”. Dr Renwick then made further submissions in relation to the grounds in paragraph 5(a) and (c) of the notice of appeal. In the midst of these submissions, at TS 84 l 8, Dr Renwick stated: “I’m sorry, my retainer has just come to an end I’ve been told… I had no notice of that. May I have leave to withdraw?” Leave was given. After a brief adjournment, the appellant sought to make submissions as to why the orders made by Higgins CJ should be extended. The Court indicated that it would hear those submissions at 4:15 pm and asked the appellant to give particulars of his assertion that the decision of Besanko J was unreasonable. The matter was left on the basis that the appellant would provide such particulars on the following day.

At approximately 4.20 pm the appellant commenced to make submissions concerning his request for an extension of the orders made by Higgins CJ. Ultimately, the Court declined to extend the orders, giving reasons. While the Court was giving its reasons, the appellant interjected, asking to withdraw and expressing displeasure at the Court’s decision (TS 108 l 45 – TS 109 l 10). The appellant was excused.

The second day of hearing

When the hearing resumed on 23 October 2009 the appellant appeared in person but did not provide any particulars of his allegation of unreasonableness, either orally or in writing. Instead, he asked each of the Judges constituting the Full Court to disqualify her- or himself for “actual bias”. The appellant outlined his concerns about each of the Judges. Penfold J and I each indicated that we did not propose to withdraw and would give reasons at a later stage. We have done so: Eastman v Besanko [2010] ACTSC 15 and Eastman v Besanko [2010] ACTSC 16. Graham J also declined to disqualify himself and gave ex tempore reasons: Eastman v Besanko [2009] ACTSC 144.

The appellant then announced his intention to take no further part in the proceedings. The following exchange occurred (TS 14 l 38 – TS 15 l 29):

Appellant: … I seek to be excused because I do not wish to make any further submissions to the court.

…
Graham J:(B)efore you depart, may I understand that you have, through your counsel yesterday and through your supplementary oral submissions put to the court all matters upon which you wish to rely in support of your grounds of appeal?

Appellant:     I have nothing further to say to the court …
Penfold J:     … Mr Eastman do you wish to remain in court?
Appellant:     No, I wish to be excused please.
Penfold J:Well, we have every intention of going on and hearing Mr Harris.

Appellant:     Yes, I have no objection to that.
…
Penfold J:     … you don’t wish to make any submissions …
Appellant:No further submissions to make.   … I seek leave to be excused.

Penfold J: Yes, all right, you’re excused. …

The appellant withdrew at about 11:00 am. Senior Counsel for the Intervenor then made his submissions, addressing the Court until about 1:00 pm, and then from about 2:00 pm until shortly before 3:00 pm. The Court reserved its decision.

On 26 October 2009 the appellant advised the registry by telephone that he wished to resile from his previous decision to make no further submissions. He sought leave to file written submissions. This request was declined by letter dated 30 October 2009. On 4 November 2009 he again applied for leave to file further submissions, at the same time forwarding his proposed submissions (the belated submissions). I have not yet decided whether to receive them.

Issues for determination

This appeal requires determination of the following issues:

(a) Should the Court receive the belated submissions?

(b) Did Edmonds J err in holding that the decision under s 424 of the Crimes Act was not a decision to which the ADJR Act applied?

(c) Did Besanko J err in his construction of the words in s 422 “a doubt or question about whether the person is guilty of the offence”?

(d) Did Edmonds J err in not finding that the decision of Besanko J was so unreasonable as to be beyond jurisdiction?

Receiving Belated Submissions

In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 750 Reeves J said at [63]:

Before leaving this matter, I should record that after I reserved my decision on 16 June 2009, Mr Boyce submitted some further written submissions. I did not give him any prior leave to do this and he did not seek leave before doing so. I rejected those submissions and have not considered them in this decision. In my view, this practice should be strongly condemned. As the High Court said in Re Application by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422; [2005] HCA 18 at [54]:
Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.

See also: Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246.

In Malouf v Malouf (2006) 65 NSWLR 449 at 452 Bryson JA said, concerning the need to avoid preferential treatment for self-represented litigants:

Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers or to retain none. Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent’s obligation to comply with the court’s directions as less than important or as superfluous.

In Eastman v Director of Public Prosecutions (2003) 214 CLR 318 the appellant:

informed the Registry that he had withdrawn his instructions to senior counsel who had represented him on the hearing of the appeal. He also forwarded to the Court a seven page document that he described as “Appellant’s Supplementary Submissions” (see p 330).

In relation to such submissions, McHugh J observed, at 330, that:

[p]arties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing… . But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk Services”) Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [94], [102] and [112]:

94 … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd [[1998] EWCA Civ 1894], said that such a concern [regarding the need to ensure that justice is not sacrificed] did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
…
102 … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. …
…
112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

The appellant clearly abandoned his right to make further submissions. It is reasonable to infer that he did so as a mark of his displeasure at some aspect of the proceedings. To permit him to resile from his decision would give tacit approval to conduct which amounted to little more than contempt. In any event, I have had regard to the content of those submissions and conclude that they do not add anything to the appellant’s case. I will explain this conclusion later in my reasons. The appeal should be resolved on the basis of the submissions as they were presented to the Court prior to the reservation of judgment.

Is the decision of Besanko J amenable to judicial review under the ADJR Act?

Section 5(1) of the ADJR Act provides:

5 Applications for review of decisions
A person aggrieved by a decision to which this Act applies may apply to the Supreme Court for an order of review in relation to the decision

The term “decision to which this Act applies” is defined in the Dictionary to the ADJR Act (the Dictionary) as follows:

decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1.

In the circumstances of this case schedule 1 has no relevant application.

The relevant decision for present purposes is the decision of Besanko J not to order an inquiry into the appellant’s conviction. That decision is said to have been made pursuant to s 424(1) of the Crimes Act. Section 424 relevantly states:

(1)The Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person’s behalf.

…
(4)Proceedings on an application are not judicial proceedings.

Section 425 provides:

(1)This division does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.
(2)Without limiting subsection (1), there is no right of appeal in relation to a decision whether to order an inquiry.

Section 422 provides:

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; and
(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.

Example for par (a) to (e)
John has been convicted of murder. Expert evidence that blood found on John’s jacket shortly after the murder was almost certain to be the victim’s blood was the main evidence connecting John with the murder.

Later DNA testing, by a method developed after all proceedings in relation to the conviction had been finalised (and the time for making any appeal had lapsed), shows that the blood is almost certainly not the victim’s blood. This gives rise to a doubt or question about the blood evidence that could not have been (and cannot now be) properly addressed in any relevant proceeding in relation to the murder, and a significant risk that the conviction is unsafe.

(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.

These provisions should be read and understood in their historical and statutory context. Part 20 of the Crimes Act provides a mechanism for inquiry into a conviction, which mechanism may be initiated by the convicted person or on his or her behalf. The following history of provisions of this kind is of some interest. It is largely drawn from the judgment of Heydon J in Eastman (ADJR-HC).

In 1883, Sir James Fitzjames Stephen published A History of the Criminal Law of England, in which he identified the very limited ways in which a conviction could, at that time, be challenged under English law. Stephen observed that:

However unsatisfactory… a verdict may be… [a]ll that can be done in such a case is to apply to the Queen... for a pardon for the person supposed to have been wrongly convicted. This is one of the greatest defects in our whole system of criminal procedure. To pardon a man on the ground of his innocence is in itself, to say the least, an exceedingly clumsy mode of procedure; but not to insist upon this, it cannot be denied that the system places every one concerned, and especially the Home Secretary and the judge who tried the case… in a position at once painful and radically wrong, because they are called upon to exercise what really are the highest judicial functions without any of the conditions essential to the due discharge of such functions. … The evil is notorious, but it is difficult to find a satisfactory remedy.

In the same year that the above comments were published, the New South Wales Parliament sought to provide a more satisfactory procedure. It enacted the Criminal Laws Amendment Act 1883 (NSW). Sections 383 and 384 of that Act provided:

383. Whenever after the conviction of a prisoner any doubt or question arises as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein it shall be lawful for any Justice by direction of the Governor on the petition of the prisoner or some person on his behalf representing such doubt or question -- or by direction of a Judge of the Supreme Court of his own motion -- to summon and examine on oath all persons likely to give material information on the matter suggested. Provided that where on such inquiry the character of any person who was a witness on the trial is affected thereby the Justice shall allow such person to be present and to examine any witness produced before such Justice and such Justice shall transmit every deposition taken by him under this section as soon as shall be practicable to the Governor if the inquiry was directed by him or to the Judge directing the inquiry and the matter shall thereafter be disposed of as to the Governor on the report of such Judge or otherwise shall appear to be just.
384. The attendance of every person so summoned may be enforced and his examination compelled and any statement made by him wilfully false shall be punishable in like manner as if he had been summoned by or been duly sworn and examined before the same Justice in a case lawfully pending before him. Provided that every deposition taken under the last section shall be stated in the commencement to have been so taken and in reference to what case and in pursuance of whose direction mentioning the date thereof.

These provisions were superseded by s 475 of the Crimes Act 1900 (NSW) (the NSW Act) as follows:

(1)       Whenever, after the conviction of a prisoner, any doubt or question arises as to his guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Governor on the petition of the prisoner, or some person on his behalf, representing such doubt or question, or a Judge of the Supreme Court of his own motion, may direct any Justice to, and such Justice may, summon and examine on oath all persons likely to give material information on the matter suggested.
(2)       The attendance of every person so summoned may be enforced, and his examination compelled, and any false statement wilfully made by him shall be punishable, in like manner as if he had been summoned by, or been duly sworn and examined before, the same Justice, in a case lawfully pending before him.
(3)       Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the Justice shall allow such person to be present, and to examine any witness produced before such Justice.
(4)       Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the Justice, before whom the same was taken, as soon as shall be practicable, to the Governor if the inquiry was directed by him, or to the Judge directing the inquiry, and the matter shall thereafter be disposed of, as to the Governor, on the report of such Judge, or otherwise, shall appear to be just.

In 1909 those provisions were adopted for the Territory by virtue of s 6 of the Seat of Government Acceptance Act 1909 (Cth) (the SOGA Act).

Criminal appeals were introduced in New South Wales in 1912, pursuant to the Criminal Appeal Act 1912 (NSW). In England such appeals had been introduced five years earlier. Criminal appeals were introduced in the Territory in 1927 when s 30B of the Judiciary Act 1903 (Cth) came into effect. However the inquiry procedure has been retained. It now appears in Pt 20 of the Crimes Act. The use of these provisions is generally limited to circumstances in which the statutory right of appeal has been exhausted.

The appellant submits that the provisions of Pt 20 are cast in beneficial terms, and that a conclusion that decisions under s 424 are not subject to review would mean that decisions infected by fraud or bias would stand unchallenged. He further submits that removing a right to judicial review would usually require a clear privative or ouster provision, and that no such provision is to be found in Pt 20. These submissions may sound appealing, but they overlook the following considerations:

• that the inquiry process almost invariably follows a trial and an appeal, including the possibility of an appeal by special leave to the High Court;

• that the inquiry process was originally adopted as a process for facilitating exercise of the royal prerogative; and

• that such an approach leads to an outcome which is quite inconsistent with received views as to the structure and operation of superior courts of record, in that one Judge of this Court would be obliged to review the decision of another.

As to the first consideration, one may accept that the trial and appellate processes are not perfect. Nonetheless, they generally provide a comprehensive system of safeguards against wrongful conviction. The appellate process provides access, or the possibility of access, to review by appellate courts at state or territory level and by the High Court. It cannot seriously be argued that the inquiry process is intended to allow general review of a conviction that has emerged from the trial process and survived the appellate process. Finality is a fundamental objective of the criminal justice system. The inquiry process is exceptional. It is entirely understandable that it should be limited in its availability so that the objective of finality is not substantially undermined.

This view is re-inforced by the history of the inquiry process. Whilst it may have been designed to avoid some of the less satisfactory aspects of an inscrutable exercise of the royal prerogative by the executive arm of government, it does not follow that the intention must necessarily have been to abandon the advantage of such an exercise, namely that it was generally final.

Pursuant to s 424(4) of the Crimes Act proceedings on an application for an inquiry are “not judicial proceedings”. Nonetheless the power to order an inquiry is vested in this Court pursuant to s 424(1). It is not a power conferred upon an individual Judge as persona designata. It seems that any order will be that of the Court, although made by a single Judge. This concept is typical of decisions of superior courts. Some of the difficulties attending review of such a decision appear from observations made in Barton v Walker [1979] 2 NSWLR 740 at 749-750 concerning a Judge’s decision to disqualify, or not disqualify him- or herself from sitting in a particular case. To similar effect are the remarks of Dawson J in Re Jarman (supra). At 610, his Honour said:

But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation, for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as “rather ludicrous”.

In order to avoid such an outcome, the High Court, in ReJarman, effectively read down a statutory provision which seemed to empower a superior court of record to review the decision of one of its members. It is even less likely that the legislature intended that one Judge of this Court could review the decision of another.

As I have observed, s 424 confers the relevant power on the Court, and any order pursuant thereto will be an order of the Court. This arrangement is to be contrasted with the provisions concerning an inquiry ordered pursuant to s 424. Such an inquiry is to be conducted by a board comprising a Judge of this Court or a Magistrate. The report will be that of the board, not the Court of which the relevant Judge or Magistrate is a member.

The explanatory memorandum to the Crimes Legislation Amendment Bill 2001 (ACT) relevantly states, concerning s 557B (now s 422):

Grounds for an inquiry
The purpose of this section is to detail the grounds for holding an inquiry into a conviction.
…
It is expected that the inquiries power would be used only in exceptional cases… It is not intended that the inquiries power be used as an alternative to the appeals process or as a means of endlessly challenging a conviction. …

Concerning s 577E (now s 425) it states:

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.

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.

The appellant at least implies that such an approach involves the abrogation of a fundamental common law right, and that the Court should conclude that in the absence of express language or necessary implication, such abrogation was not intended. See Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11] and [43]. However this case is not concerned with fundamental common law rights. It is rather concerned with the combined operation of the ADJR Act, the Crimes Act and, to a lesser extent, the Supreme Court Act. The three Acts must be given effect. Further, I observe that an unsuccessful application pursuant to s 424 would not preclude an inquiry pursuant to s 423.

The Legislation Act 2001 (ACT) governs the construction of Territory legislation. The relevant provisions of the Legislation Act apply to Pt 20 of the Crimes Act. Part 14.2 of the Legislation Act contains provisions which deal with “working out the meaning of an Act”. Relevantly, “working out the meaning of an Act” is defined in s 138 to include “confirming or displacing the apparent meaning of [an] Act” and “finding the meaning of [an] Act when its apparent meaning leads to a result that is manifestly absurd or unreasonable”. Section 141 of the Legislation Act provides that “material not forming part of the Act may be considered” in working out the meaning of an Act. Section 142 indicates that such material may include explanatory memoranda. Section 139 states that “[i]n working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.”

These provisions are consistent with, but perhaps go further than the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], where McHugh, Gummow, Kirby and Hayne JJ observed:

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

If the appellant is entitled to judicial review of a Judge’s decision pursuant to s 424, then it is difficult to see that s 425 has any significant effect other than to exclude a direct appeal to the Court of Appeal, substituting for that well-understood process, the novel idea of statutory review by another Judge of the same Court and an appeal from that decision to the Court of Appeal. The better view is that the Legislature intended to exclude a challenge to a decision under s 424 by way of appeal or review. That purpose is achieved, albeit clumsily, by s 425, which provides that there is no right to an order that there be an inquiry, no duty to order an inquiry, and that no appeal lies from a decision under s 424. Whilst, 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. Any other approach seems to produce a very curious result.

As to s 138 of the Legislation Act, the Shorter Oxford Dictionary (6th ed, 2007) defines the word “absurd” to mean “(o)ut of harmony with reason or propriety; incongruous, inappropriate; unreasonable; ridiculous, silly”. The word “unreasonable” means “(n)ot endowed with reason; irrational … . Not based on or acting in accordance with reason or good sense”. I have little difficulty in so describing an outcome which requires review of the decision of one member of the Court by another, with a right of appeal to the Court of Appeal.

I should mention one other matter. The ADJR Act contains provisions which identify decisions to which that Act does not apply or applies in a limited way. The Executive may, by regulation, exempt other decisions from review. See ss 20 and 21. It is arguable that where there are express exceptions to the operation of a statute and/or provision for exemption from such operation, there is no warrant for a narrow construction of the relevant statute so as to avoid apparently inappropriate outcomes. See Brookfield Multiplex Ltd v International Funding Litigation Partners Pte Ltd (2009) 180 FCR 11 at [29]. However, in this case, the extreme inappropriateness of the outcome and the clear expression in the explanatory memorandum of the legislative intent outweigh considerations of that kind. I conclude that the ADJR Act does not authorise review of a decision under s 424 of the Crimes Act. The appeal must fail.

It may also be arguable that a decision pursuant to s 424 is not a decision of an administrative character as required by the definition of the term “decision to which this Act applies” in the Dictionary. Although s 424(4) provides that proceedings pursuant to s 424(1) are not judicial proceedings, it may not necessarily follow that any decision is administrative in nature for the purposes of the ADJR Act. The separation of legislative, judicial and administrative functions is of importance for reasons associated with constitutional theory. However that taxonomy should not be applied as if it were an immutable constitutional principle, necessarily regulating all aspects of government in the relevant polity. The terms “legislative”, “judicial” and “administrative” may mean different things in different constitutional arrangements and in legislation made under such arrangements. This well-understood, but flexible terminology should not be used in construing a statute so as to produce an unlikely result.

I should also say something about the High Court’s decision in Griffith University v Tang (2005) 221 CLR 99. In reaching his decision in the present case, Edmonds J, at [16], held that the decision not to order an inquiry pursuant to s 424 did not “confer, alter or otherwise affect legal rights or obligations” in the sense that those words were used by Gummow, Callinan and Heydon JJ at [89] in Tang. Their Honours said that for a decision to be made under an enactment it must not simply be “expressly or impliedly required or authorised by the enactment” but must also “confer, alter or otherwise affect legal rights or obligations”.

Edmonds J held that the decision of Besanko J did not so confer, alter or affect legal rights or obligations. This conclusion may reflect an unduly restrictive view of the reasoning of the majority in Tang. A decision under s 424 may, as submitted by Dr Renwick, affect rights and duties under the Crimes Act. For example, in the event that an inquiry is ordered pursuant to s 424, certain statutory duties arise under ss 427-431. It seems that the convicted person would be able to enforce performance of such duties, or at least obtain declaratory relief as to their existence. An interested party would, presumably, be entitled to apply for an order pursuant to s 429(2). Whilst it may not be necessary to apply to the Court in order to engage the powers and duties conferred and imposed by s 430, one might readily construe the section as conferring a right on the convicted person to have the report considered and acted upon by the Court, observing the procedure prescribed in s 431. The exclusion of any right to an order pursuant to s 430(2)(b) or s 430(2)(d) suggests that the convicted person may have a right to an order pursuant to s 430(2)(c) in the event that the report points to that outcome.

A decision under s 424 derives “from the enactment the capacity to affect legal rights and obligations” (Tang at [80]). See further Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed), p 81. It is difficult, in general terms, to see how a decision under s 424(1) could be described as being other than a decision under an enactment. However it is not necessary that I decide this question. I have concluded that the appellant is not entitled to seek review of the decision of Besanko J. Although I need not consider the purported grounds of review, I will do so for the sake of completeness.

Was the respondent’s decision infected by errors of law?

Besanko J concluded at [126] to [148], [198] to [200], [212] to [213] and [221] to [223] that the relevant preconditions to the making of an order, as set out in s 422, were not established. On that basis, his Honour refused to order an inquiry. Although the point was not raised before Edmonds J, the appellant now seeks to challenge this conclusion on the basis that Besanko J erred in construing the words “doubt or question” and the word “guilty” in s 422. The Intervenor does not object to the appellant raising the proper construction of the words “doubt or question” on appeal, but objects to his raising the proper construction of the word “guilty”.

The appellant seeks to make out such errors solely by reference to the way in which Besanko J dealt with criticisms of the evidence of the witness B who claimed expertise in the area of gunshot residue. The appellant firstly submits that his Honour failed to recognize that a relevant question may be raised although no relevant doubt has yet been demonstrated. The appellant points to certain criticisms made of B’s evidence and of his methodology as raising such a doubt or question. Some of these criticisms came from Dr Wallace, a ballistics expert consulted by the appellant and his legal advisers before, during and, apparently, after the trial in connection with the appeal. He did not give evidence at the trial, but the appellant sought, on appeal, to rely on “fresh” evidence from him. The Full Court refused to receive that evidence.

The appellant has also become aware of other criticisms of B (the Victorian material). It is contained in two appellate judgments, a Coroner’s report and an associated scientific report, and three memoranda from the Director of the Victorian Forensic Science Centre. The Director’s criticism arose out of B’s former employment as a senior scientist by VicPol, presumably the Victorian Police. Evidence of these criticisms was not led at trial. The submission seems to be that such criticisms necessarily raise a question as to the appellant’s guilt, and that had Besanko J not misconstrued the words “doubt or question” in s 422, his Honour would necessarily have concluded that there was a question as to guilt.

Secondly, the appellant submits that Besanko J failed to appreciate that the word “guilty” means “guilty as evidenced by conviction”, not “guilty in fact”. This submission depends upon the further submission that the prosecution ought to have disclosed the Victorian material to the appellant at some relevant time. The appellant submits that the failure to do so was an irregularity in the trial process which would have led his Honour to conclude that there was a question as to guilt, had he not misconstrued the meaning of the word “guilty” in s 422. In a sense, both limbs of this construction argument comprise an alternative approach to the appellant’s assertion that the decision by Besanko J was so unreasonable that it must have been infected by jurisdictional error.

The Intervenor submits that Besanko J, at [12], expressly acknowledged and adopted the distinction between “doubt” and “question” as explained by Heydon J in Eastman v DPP at [134], and that the appellant’s submission seems to assume that if any identifiable question is raised, it will necessarily lead to an inquiry being ordered. The Intervenor submits that the criticism concerning his Honour’s construction of the word “guilty” is not made out. He submits that the criticism depends upon the implicit assertion that the prosecutor was aware of the Victorian material at some relevant time, and that there is no evidence to this effect. Thus the factual basis for the argument has not been established. In those circumstances, the Intervenor submits that the appellant should not be allowed to raise the matter on appeal.

These construction points must be seen in light of B’s evidence, the various criticisms of it and the approach taken by Besanko J to his task pursuant to s 424. I commence with a discussion of the relevant parts of B’s evidence as identified by Besanko J.

Although the murder weapon was never found, it was identified as a weapon which had been sold by one Klarenbeek. The rifle (the Klarenbeek rifle) had been adapted to take a silencer. Mr Klarenbeek was offering it for sale in December 1988. There was some evidence which suggested that Mr Klarenbeek was offering it for sale with a silencer. He died after giving evidence at the committal hearing and before trial. Thus there was no evidence of actual sale of the Klarenbeek rifle and the silencer to the eventual purchaser. The prosecution case was that both the rifle and the silencer were sold to the appellant, and that he used them to kill Mr Winchester. There was some direct evidence identifying the appellant as the purchaser, but it was of a complicated nature and, in some respects, was arguably unreliable. Besanko J summarizes this evidence in his reasons. However evidence concerning the Klarenbeek rifle was also capable of implicating the appellant.

Spent cartridges of a particular brand, which were found at the murder scene, bore markings which were caused by characteristics of the rifle from which they were discharged. Similar marks were found on spent cartridges located at sites at which the Klarenbeek rifle had been test-fired prior to its coming in to Mr Klarenbeek’s possession and thereafter. It appears to have been accepted that the similar markings demonstrated that the spent cartridges found at the test-firing sites had been discharged from the same weapon as that from which the cartridges found at the murder scene had been discharged.

Gunshot residue found on Mr Winchester’s body, in his car and in the appellant’s car was consistent with having been produced by the discharge of cartridges of the brand found at the murder scene, save that in each case the residue contained fragments described as “chopped disc particles”. Such particles would not have resulted from discharge of that brand of cartridge. However they would have been produced in the discharge of other brands of cartridge suitable for use in the Klarenbeek rifle. Some of the cartridges found at the test firing sites were of brands which would have yielded the chopped disc particles.

Mr Winchester’s wife had, at the time of the murder, heard sounds which may have been consistent with shots being fired from a weapon fitted with a silencer. B considered that the chopped disc particles may have been the product of previous firing of the Klarenbeek rifle whilst it was fitted with a silencer, using ammunition which produced such particles. B suggested that particles may have become lodged in the silencer and then dislodged in the murder, ending up in the gunshot residue. He carried out tests which provided some support for the theory. Other experts either accepted this theory or did not discount it. Dr Wallace concedes that B’s theory is possible but does not accept it as probable.

One aspect of Dr Wallace’s statement should be noted. Besanko J understood him to assert that one type of ammunition which may have produced chopped disc particles was the Remington brand, and that evidence in the case suggested that Remington brand ammunition had been test-fired from the Klarenbeek rifle before it was adapted to take a silencer. Obviously, chopped disc particles could not have been retained in the silencer as a result of that test-firing. In the absence of a careful examination of Dr Wallace’s statement and the other evidence in the case, this observation might appear to undermine B’s theory. However the evidence indicated that CCI brand ammunition, possibly Remington ammunition and possibly Sterling ammunition may produce chopped disc particles. The evidence at the trial indicated that a previous owner, Mr Caldwell, had fired the Klarenbeek rifle using Remington ammunition. It had not, at that time, been adapted to take a silencer. He had recovered spent cartridges from a test-firing site and handed them to the police. Some of the cartridges recovered were Remington brand. It seems that Dr Wallace’s reference to test-firing with Remington ammunition prior to the adaptation of the rifle to take a silencer was to Mr Caldwell’s test-firing.

Mr Caldwell sold the rifle to a man named King who sold it to Mr Klarenbeek. By that time it had been adapted to take a silencer. Mr Klarenbeek also test-fired the rifle. He recovered seven spent cartridges and handed them to the police. Two of them were Sterling brand and one was CCI brand. Hence they may have produced chopped disc particles in the course of the test-firing. If the silencer was fitted, they may have become lodged in it. In light of this evidence, Dr Wallace’s statement concerning test-firing of the Klarenbeek rifle before its adaptation, using Remington ammunition is a mere distraction.

The spent cartridges found at the murder scene and at the test firing sites, together, linked the Klarenbeek rifle to the murder but said nothing about whether the appellant was the purchaser of the rifle or the murderer. The presence of the chopped disc particles may, in some circumstances, have cast doubt upon whether ammunition of the kind found at the scene had been produced in the course of the murder, although such a view of the facts is somewhat unlikely. In this case there seems to have been no real challenge to the proposition that the spent cartridges found at the murder scene had been so produced, or that the Klarenbeek rifle was the murder weapon. The question was whether the appellant had used it to kill Mr Winchester.

…

Penfold J: … you don’t wish to make any submissions …

Appellant: No further submissions to make. … I seek leave to be excused.

Penfold J: Yes, all right, you’re excused. …

Upon the appellant withdrawing from the hearing of his appeal at about 11 am on 23 October 2009 the Court entertained submissions from senior counsel for the Intervenor when the Court resumed after a morning adjournment at about 11.30 am. Senior counsel for the Intervenor addressed the Court until about 1 pm and again from about 2 pm to shortly before 3 pm when the Court reserved its decision.

In the end result the Court had the benefit of the helpful submissions of counsel for the appellant dated 19 October 2009 which were directed to the grounds of appeal (a) and (c), the oral submissions of counsel for the appellant dealing in particular with ground of appeal (a) and the brief oral submissions of the appellant in person late in the day on 22 October 2009. The Court then had the advantage of the Intervenor’s written summary of argument of 22 October 2009 and the oral submissions of senior counsel for the Intervenor of 23 October 2009.

In essence the Intervenor submitted that the primary judge had not fallen into error in the manner alleged and that accordingly the appeal should be dismissed.

The Intervenor submitted that the primary judge correctly decided that the decision of the respondent was not a decision under an enactment. In addition the Intervenor submitted that the decision was not a decision ‘of an administrative character’ within the meaning of the ADJR Act. It was a quasi-judicial decision rather than an administrative decision. Thirdly it was submitted that s 425 of the Crimes Act was intended to exclude decisions of the Supreme Court under s 424 of the Crimes Act from review by the Supreme Court in proceedings such as those instituted by the appellant under the ADJR Act.

The receipt of further submissions following the conclusion of a hearing

Subsequent to the reservation by the Court of its judgment on the appeal on 23 October 2009 the appellant has had second thoughts and now wishes to present further submissions to the Court.

In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 186 IR 82 Reeves J said at [63]:

Before leaving this matter, I should record that after I reserved my decision on 16 June 2009, Mr Boyce submitted some further written submissions. I did not give him any prior leave to do this and he did not seek leave before doing so. I rejected those submissions and have not considered them in this decision.
In my view, this practice should be strongly condemned. As the High Court said in Re Application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at [54]:
Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.

See also: Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246.

True it is that the appellant became a litigant in person after he withdrew his counsel’s retainer towards the end of the day on 22 October 2009 and proceeded to terminate his solicitor’s instructions shortly thereafter. However, it must be remembered that the appellant has become an experienced litigant in person.

In this regard it is timely to refer to the observations of Bryson JA in Malouf v Malouf (2006) 65 NSWLR 449 at [183] about the need to avoid preferential treatment for self-represented litigants, in fairness to the other parties. His Honour said:

Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers, or to retain none. Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent’s obligation to comply with the court’s directions as less than important, or as superfluous.

In a postscript to his reasons for judgment in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 (Eastman v DPP) McHugh J, with whose reasons for judgment Gummow J agreed, said at [27]-[31]:

27        On 28 March 2003 after I had circulated my reasons in this appeal to other members of the Court, the appellant informed the Registry that he had withdrawn his instructions to the senior counsel who had represented him on the hearing of the appeal. He also forwarded to the Court a seven page document that he described as “Appellant’s Supplementary Submissions”.
28        I have had no regard to these “submissions”. They should not have been forwarded to the Court. The Rules of the Court gave no authority for them to be forwarded. Nor did the Court give leave to the appellant to file them. If leave had been sought, I would have refused it. If the Court gave leave, it would have to give leave to the other parties in the appeal to file replies – with consequent delay in the business of the Court.
29        Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing – ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
30        This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1], Mason J said:
“The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.”

31 Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions – with all the attendant delay in the Court's business by a fresh round of submissions. Efficiency requires that the despatch of the Court's business not be delayed by further submissions reflecting the afterthoughts of a party or – as perhaps is the case in this appeal – some dissatisfaction with the arguments of the party's counsel.
(footnote omitted)

In the same case Heydon J, with whose reasons for judgment Gleeson CJ, Kirby J, Hayne J and Callinan J agreed, as did Gummow J also, said in respect of the appellant’s supplementary submissions in that case:

143 On 28 March 2003 the appellant informed the Registry that he had withdrawn his instructions from the counsel who represented him at the hearing of the appeal. He supplied a seven page document entitled “Appellant's Supplementary Submissions”. No leave was sought or given for the supply of this document, and it does not state any reason why it should now be received. Accordingly, it is rejected.
(footnote omitted)

In my opinion the appellant’s application to now rely upon further submissions should be rejected. No reason for allowing such application was advanced.

Whilst Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 was concerned with a late amendment to a pleading, it is also appropriate to note what was said by Gummow, Hayne, Crennan, Keifel and Bell JJ at [94], [102] and [112] as follows:

94        … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd [[1998] EWCA Civ 1894], said that such a concern [regarding the need to ensure that justice is not sacrificed] did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
…
102      … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. …
…
112      A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
(Emphasis added)

Just as there may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates, there will be other cases where like considerations should be applied to the presentation of further submissions after a hearing has concluded where no such submissions were in contemplation when the hearing concluded. The appellant’s clear abandonment of any desire to present further submissions when the hearing resumed in the absence of his legal representatives on 23 October 2009 was such that he ought not be permitted to ‘have a second bite at the cherry’ and put the Intervenor to further expense because of his change of heart. His disregard for what had been said by the High Court in Eastman v DPP (supra) is incomprehensible.

This matter should be decided on the basis of the submissions as they were presented to the Court prior to the reservation by the Court of its judgment on the Amended Notice of Appeal.

Whether a decision of the ‘Supreme Court’ under s 424(1) of the Crimes Act is reviewable

The Explanatory Memorandum to the Crimes Legislation Amendment Bill 2001 (ACT) relevantly stated in relation to the section which has now become s 422 of the Crimes Act:

Grounds for an inquiry
The purpose of this section is to detail the grounds for holding an inquiry into a conviction.
…
It is expected that the inquiries power would be used only in exceptional cases… It is not intended that the inquiries power be used as an alternative to the appeals process or as a means of endlessly challenging a conviction. …

In relation to the section which has now become s 425, the Explanatory Memorandum stated:

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.

In my opinion a decision of the ‘Supreme Court’ (in this instance, that of the respondent) on an application for inquiry was a decision of an administrative character which was not open to review or appeal because of s 424(4) and 425 of the Crimes Act.

Whilst the decision of the respondent was, in my opinion, a decision of an administrative character, contrary to the submission of the Intervenor, nevertheless it was not a decision made under an enactment as that expression is properly understood.

In Griffith University v Tang on which the primary judge relied, Gummow, Callinan and Heydon JJ said at [89]:

89The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

A decision to order or not to order an inquiry under s 424 of the Crimes Act was undoubtedly ‘authorised’ by the Crimes Act. However, where ss 422-425 do ‘not create a right to the order of an inquiry’ and do ‘not create a duty to order an inquiry’, it seems to me that the decision of the respondent not to order an inquiry did not itself bear upon any legal rights or obligations of the appellant. Thus, the decision did not derive from the enactment. In my opinion the test laid down in Griffith University v Tang has not been satisfied.

In these circumstances, it is of no moment that a decision under s 424(1) of the Crimes Act is not listed as a decision excluded from review under Schedule 1 to the ADJR Act.

It may also be observed that the Crimes Legislation Amendment Act 2001 (ACT) post-dated the enactment of the ADJR Act.

Not only was the respondent’s decision not to order an inquiry not a decision made under an enactment as explained by Gummow, Callinan and Heydon JJ in Griffith University v Tang, it is clear that the appellant was not a ‘person aggrieved’ by the respondent’s decision. The appellant had no interests that were or could be adversely affected by the decision of the Supreme Court (see s 3B(1) of the ADJR Act). The Supreme Court was under no duty to order an inquiry and the appellant had no right to the order of an inquiry. At its highest the appellant had an ‘opportunity’ to apply for an inquiry (see s 424(1) of the Crimes Act) and he was not denied that opportunity.

Importantly, s 425(1) is a privative provision which denies rights to a dissatisfied applicant. It provided:

425(1) This division [ss 422-425] does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.
(emphasis added)

Given that s 425(2) commenced with the words ‘Without limiting subsection (1)’, it seems to me that the legislature clearly intended to provide a mechanism for the possible instigation of inquiries without there being any rights of review or appeal in respect of a decision not to order an inquiry.

‘Proceedings’ on an application for an inquiry to be ordered are not judicial proceedings (see s 424(4)) nor is consideration by a Full Court of the report of a board of inquiry under s 430 a judicial proceeding (see s 431(2)).

A decision whether to order an inquiry is one in respect of which ‘there is no right of appeal’ (see s 425(2)).

Presumably, the exclusion of a right of appeal in relation to a decision whether to order an inquiry was only to apply to inquiries for which an order was sought on an application to the Supreme Court by a convicted person or by someone else on the convicted person’s behalf.

In my opinion s 425(2) was not intended to have any application in respect of a failure by the Executive to ‘order an inquiry on its own initiative’.

In reaching the foregoing conclusions I have made the following more general observations on Part 20 of the Crimes Act which deals with ‘Inquiries into convictions’:

(a) Part 20 comprises 12 sections (ss 421-432 inclusive).
(b)Part 20 confers powers and obligations upon the ‘Supreme Court’ and upon the ‘Executive’. Neither the ‘Supreme Court’ nor the ‘Executive’ are defined expressions under the Crimes Act.
The Legislation Act 2001 (ACT) includes a dictionary at the end thereof and under s 2 of that Act:
The dictionary at the end of this Act is part of this Act.

When one goes to the dictionary in the Legislation Act it is apparent that it is divided into two parts. Part 1 has a heading ‘Meaning of commonly-used terms’ and Part 2 has a heading ‘Terms for Legislation Act 2001 only’.
Part 1 of the dictionary to the Legislation Act commences with the words ‘Terms that are defined only for this Act are set out in pt 2’.
Part 2 commences with a note reading:
Terms that apply to all Acts and statutory instruments are set out in pt 1.

Under Part 1 of the dictionary to the Legislation Act ‘Supreme Court’ is defined to mean ‘the Supreme Court of the Australian Capital Territory’. The definition is followed by a Note reading:
The Supreme Court is established by the Supreme Court Act 1933, s 3. The Self-Government Act, s 48A deals with the jurisdiction and powers of the court.

Part 1 of the dictionary to the Legislation Act defines ‘Executive’ to mean ‘the Australian Capital Territory Executive’.
The definition of ‘Executive’ is followed by a Note reading:
The Executive is established by the Self-Government Act, s 36

(c)Section 421 of the Crimes Act contains a definition of ‘Full Court’ as ‘the Supreme Court constituted by a Full Court’.
(d)Section 421 also includes a definition of ‘registrar’ as ‘the registrar of the Supreme Court’.
(e)Importantly, s 423 empowers ‘The Executive’ to ‘order’ an inquiry on its own initiative and s 424(1) empowers the Supreme Court to ‘order’ an inquiry ‘on application by the convicted person’ or on application ‘by someone else on the convicted person’s behalf’.
(f)If an inquiry is ordered, the Executive must appoint a ‘board of inquiry under the Inquiries Act 1991’.
(g)Under s 427(3) the board of inquiry must be constituted by ‘a judge of the Supreme Court or a magistrate’.
(h)Under s 427(2) the appointment of a board of inquiry must state that the inquiry is ‘to be in relation to the matter stated in the order, and in relation to no other matter’.
(i) Under s 422(2) an inquiry is limited to matters stated in the order for the inquiry and under s 422(3) if the inquiry is ordered by the Supreme Court, the Court may set limits on the inquiry under s 422(2) ‘despite anything in the application for the inquiry’.

(j) Section 424(3) of the Crimes Act contemplates that in addressing an application for the Supreme Court to ‘order an inquiry’, the Supreme Court may consider a written submission by the Attorney-General or the director of public prosecutions (or both) in relation to the application.
(k) Section 425(2) provides that there should be no right of appeal in relation to ‘a decision whether to order an inquiry’.
(l)Sections 426-428 deal with inquiry procedure and the production of a report of the inquiry by the board of inquiry to the registrar of the Supreme Court.
(m)Under s 428(2) the board of inquiry must also give to the Registrar of the Supreme Court ‘for safe-keeping’, any documents or things held by the board for the purpose of the inquiry.
(n)Section 429(2) of the Crimes Act empowers the Supreme Court to make orders in respect of the non disclosure, limited disclosure and partial disclosure of a report produced by a board of inquiry.
(o)Section 430 of the Crimes Act deals with consideration and action upon a report of a board of inquiry. Section 430(1) requires the Full Court of the Supreme Court to consider the report of a board into (sic) an inquiry. Section 430(2) of the Crimes Act then requires the court ‘[h]aving regard to the report’ to order confirmation of the conviction, confirmation of the conviction with a recommendation for a pardon or remission of sentence, quashing the conviction or quashing the conviction and ordering a new trial.
Section 430(4) of the Act denied a convicted person a right to an order of the Full Court of the Supreme Court of the character identified in the second and fourth alternatives.
(p)Presumably the reference to ‘the Supreme Court’ in s 431(1) was intended as a reference to the ‘Full Court’, ‘whether to make an order under this part about a report’ in s 431(1) was intended as a reference to whether an order should be made under s 429 or s 430 and the reference to ‘whether to make an order under this part’ in s 431(2) was intended as a reference to whether or not an order should be made under s 429 or s 430. Given the terms of s 424(4) and s 431(2) it is hardly likely that ‘under this part’ where used in s 431(2) was intended to embrace a decision on whether to order an inquiry under s 424.

In my opinion the primary judge correctly found that the appellant’s application was not competent. In the foregoing circumstances the appeal should be dismissed and the appellant should be ordered to pay the Intervenor’s costs.

In my opinion it is unnecessary and inappropriate in the circumstances of this case to address whether the respondent misconstrued the words ‘doubt or question about whether the person is guilty of the offence’ in s 422(1)(a) of the Crimes Act and whether the primary judge erred in not finding that the making by the respondent of his decision was an improper exercise of the power given by s 424(1) of the Crimes Act, an exercise of a power that was ‘so unreasonable that no reasonable person could have so exercised the power’.
I certify that the preceding paragraphs numbered one hundred and sixty-seven (167) to two hundred and thirty-nine (239) are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Date: 17 August 2010

Counsel for the Appellant: J G Renwick until approximately 4:05pm on 22 October 2009
Solicitor for the Appellant: Jackson Lalic until approximately 4:05pm on 22 October 2009
The Respondent filed a submitting appearance.

Counsel for the Intervenor:  J D Harris SC and D J C Mossop
Solicitor for the Intervenor:  ACT Government Solicitor
Dates of hearing:  22, 23 October 2009
Date of judgment:  17 August 2010