Eastman v Director of Public Prosecutions (ACT) and Ors

[2002] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Registry  No C10 of 2002

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (ACT), IAN PIKE and THE ATTORNEY‑GENERAL (ACT), and THE HONOURABLE CHIEF JUSTICE OF THE SUPREME COURT OF THE ACT

Respondents

For Judgment

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 2002, AT 9.16 AM

Copyright in the High Court of Australia

HIS HONOUR:   This matter is in for judgment.  The summons in this matter arises out of a special leave application filed in this Court by the applicant in which he seeks special leave to appeal against an order of the Full Court of the Federal Court.  The order of that court set aside an administrative decision of the Chief Justice of the Australian Capital Territory for inquiry under section 475 of the Crimes Act 1900 into the applicant’s conviction for murder.  The Chief Justice was of the view that a question of doubt arose as to the applicant’s guilt, that question being whether the applicant was fit to plead at his trial for the murder of Assistant Commissioner Colin Winchester.

The summons, as filed, sought three orders:

1.   That the summons be dealt with on written submissions only.

2.   That the application books be dispensed with or be prepared by the Registry.

3.   That the special leave application be heard expeditiously and preferably in August 2002.

Subsequently, the applicant sought to substitute another order for the first order sought.  The substituted order was to the effect that he be brought to Canberra to enable him to make oral submissions at the hearing of the chamber summons today.  He also sought to add a fourth order to the effect that he be returned to Goulburn jail as soon as possible and kept there until the conclusion of the special leave application matter.

Through the Deputy Registrar I intimated that I would not make any order that the applicant be brought to this Court.  My usual practice is that an applicant does not get any longer to put oral submissions in a chamber matter, ancillary to a special application, than the applicant gets in the special leave application itself, which is 20 minutes.  Indeed, ordinarily I confine oral submissions in ancillary matters to 10 minutes for each party.  The Justices of this Court simply do not have the time to allow parties to put unlimited oral submissions in applications for stays, expedition and other ancillary matters connected with special leave applications.

The work of the Court continues to increase.  In August alone 120 new matters were filed, most of them being immigration matters.  Speaking generally, parties to applications concerning ancillary matters to special leave applications must put their principal arguments through written submissions.  This is particularly so in summons for expediting a special leave application.  The granting of expedition is solely a matter for the Court, which must arrange its list in the way that it thinks is most convenient for its purposes.  Having read the materials filed in the summons and the special leave application, I could see no justification for an order that would involve the cost and no doubt administrative inconvenience of bringing the applicant to this Court.

In any event, I think that there must be a serious question whether the Court has power to order that the applicant be brought to this Court.  An application for special leave is an application for permission to start proceedings in the Court.  Until special leave is granted, there is no “matter” in the constitutional sense before the Court.  Only when leave is granted does the judicial power of the Court become fully engaged.  Although the Court undoubtedly has power to stay judgments so as to protect the subject matter of a special leave application, I have real doubts as to whether the Court has power to make an order requiring the applicant to be brought from prison to the Court.

Whether or not the Court has power to order that an imprisoned person be brought to the Court to argue a special leave application, it certainly has no implied or inherent power to order that a prisoner be transferred from one prison to another pending the hearing of a special leave application.  The judicial power of the Commonwealth does not extend to directing State prison authorities, acting within their lawful authority, as to where prisoners – including litigants in this Court – are to be imprisoned.

The effect of an order granting expedition is that other applications including applications in criminal cases, prior in time, are displaced.  To obtain expedition, an applicant for special leave needs to show that his or her application involves some urgency over and above that of other applications for special leave.  On the materials before me, there is only one matter that could warrant the grant of expedition and that is that the order of the Federal Court has brought to an end a public inquiry into the applicant’s guilt in respect of the murder of Assistant Commissioner Winchester.

Commissioner Winchester was murdered as long ago as January 1989 and the applicant was convicted of that murder almost seven years ago.  If there is a doubt about the applicant’s guilt within the meaning of section 475 of the Crimes Act, the public interest requires that the doubt be resolved as soon as possible.  If this Court were to grant the applicant’s application for special leave and allow his appeal, the section 475 inquiry would have to proceed.  It is therefore of some urgency that this Court should deal with his application for special leave as soon as is reasonably possible ‑ bearing in mind the rights of applicants who have lodged earlier applications – so that the Court can resolve the question as to whether there is to be a section 475 inquiry.

For that reason, I think this is a case where the application for special leave should be given some priority.  The lists for the next two special leave application days are in Sydney, but both lists are full.  The present application is not so urgent that any of the matters already listed in Sydney should be displaced.  However, there is a special leave list for 15 November, 2002 to be heard in Canberra.  This application should be added to that list.  That gives the applicant’s special leave application expedition of several months.

The applicant asked that the Court prepare the application books.  However, the first respondent has indicated that he will prepare the application books.  In those circumstances, there is no reason to make any order concerning the printing of the application books.

Accordingly, I order that special leave application No 10 of 2002 be expedited and placed in the special leave list for 15 November, 2002.  Since the summons has not been formally amended, there is no need to make any order in respect of the proposed new orders.  I note that the first respondent will prepare, file and serve the application books.  The costs of this application will be costs in the special leave application.

Adjourn the Court.

AT 9.23 AM THE MATTER WAS CONCLUDED