Eastman v Director of Public Prosecutions; Director of Public Prosecutions v Eastman
[2014] ACTSCFC 1
•23 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Eastman v Director of Public Prosecutions Director of Public Prosecutions v Eastman & anor |
Citation: | [2014] ACTSCFC 1 |
Hearing Date: | 23 June 2014 |
DecisionDate: | 23 June 2014 |
Before: | Rares J, Wigney J, Cowdroy AJ |
Decision: | The determination of the Full Court as to the appropriate order to be made pursuant to s 430(2) of the Crimes Act 1900 (ACT) involves an exercise of judicial power. Section 431 of the Crimes Act1900 (ACT) does not apply to the Full Court’s exercise of its jurisdiction or power under s 430(2). |
Category: | Constitutional question |
Catchwords: | CONSTITUTIONAL LAW – JUDICIAL POWER – whether Full Court exercises judicial power when making an order confirming or quashing a conviction under s 430(2) of the Crimes Act 1900 (ACT) – whether s 431 of Act applies to exercise of Full Court’s jurisdiction under s 430(2) so as to prevent it hearing submissions – whether legislature can confer powers incompatible with institutional integrity and independence on Ch. III courts – incompatibility of functions – courts protected from legislative and executive incursion – characteristic of courts to act openly, impartially and in accordance with fair and proper procedures – legislation invalid if functions conferred on court repugnant to or incompatible with institutional integrity and independence – right of affected parties to be heard fundamental to exercise of judicial power – duty of court to interpret legislative provision as operating to the full extent of but not exceeding legislative power under s 120(1) of the Legislation Act 2001 (ACT) – whether s 431(1)(b) or (2) can be severed under s 120(2) of the Legislation Act 2001 (ACT) STATUTORY INTERPRETATION – where statute requires decision-maker to have regard to a matter or matters – decision-maker must give weight to such matters as a fundamental element in decision-making Held: (1) determination of appropriate order to make under s 430(2) of Act involves exercise of judicial power (2) court permitted to hear submissions in proceedings under s 430(2) of Act |
Legislation Cited: | Crimes Act 1900 (ACT) Inquiries Act 1991 (ACT) Legislation Act 2001 (ACT) |
Cases Cited: | Abebe v The Commonwealth of Australia (1999) 197 CLR 510 applied Annetts v McCann (1990) 170 CLR 596 applied Weiss v The Queen (2005) 224 CLR 300 referred to |
Parties: | SC 222 of 2014 David Harold Eastman SC 253 of 2014 Attorney-General for the Commonwealth (Intervener) |
Representation: | Counsel: SC 222 of 2014 SC 253 of 2014 Mr J Gleeson S-G SC with Mr G Aitken (Intervener) |
| Solicitors: SC 222 of 2014 SC 253 of 2014 Australian Government Solicitor (Intervener) | |
File Numbers: | SC 222 of 2014; SC 253 of 2014 |
THE COURT:
(REVISED FROM THE TRANSCRIPT)
The Court is mindful that these proceedings potentially involve the liberty of the subject. We have had the benefit of comprehensive written and oral submissions on the jurisdictional questions as to how the Full Court is to exercise its jurisdiction and powers under s 430(2) of the Crimes Act 1900 (ACT). It is appropriate that we give brief reasons immediately as to the views that we have formed so that the matter may proceed.
Background
On 3 November 1995, David Eastman was found guilty of the murder of the then assistant federal police commissioner, Colin Winchester. Subsequently, the High Court affirmed Mr Eastman’s conviction in that trial: Eastman v The Queen (2000) 203 CLR 1.
On 29 April 2011, Mr Eastman made an application for an inquiry under Part 20 of the Crimes Act in respect of his conviction. A judge of the Court ordered that such an inquiry take place. On 29 May 2014, Martin AJ, who had been appointed to conduct the inquiry, delivered a report to the registrar of the Court pursuant to s 428 of the Crimes Act. In that report, Martin AJ recommended that Mr Eastman’s conviction be quashed and that a retrial should not be ordered.
Pursuant to s 430(2), the Full Court must have regard to the report and make an order either confirming the conviction, with or without a recommendation that the Executive remit penalties or grant a pardon, or quashing the conviction with or without ordering a new trial. The legislation contains a very difficult and unusual provision in s 431 that, among other things, states that, in considering whether to make an order under Part 20 about a report, the Supreme Court may only have regard to matters stated in the report or documents or things given to the registrar with it, must not hear submissions from anyone, and that consideration of whether to make an order under Part 20 is not a judicial proceeding. The terms of ss 430 and 431 are set out later in these reasons.
The Full Court considered that these matters gave rise to real issues as to the nature of its jurisdiction and power that required argument. Where there is an issue concerning its jurisdiction, the first duty of a court is to determine whether it has jurisdiction to deal with the matter and to identify the nature of that jurisdiction and power so as to ensure that the Court is acting in accordance with law: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202 per Gibbs CJ with whom Mason J agreed; 213 per Wilson and Dawson JJ.
The Legislative Scheme
The construction of s 431 is therefore critical to a precise understanding of how the Court ought proceed. Section 431 must be construed in the context of the legislative scheme of which it forms part. The legislative scheme in Part 20 involves three stages set out in each of Divs 20.2, 20.3 and 20.4. Relevantly, s 421 has this definition: “Full Court means the Supreme Court constituted by a Full Court”.
Division 20.2, the first stage, deals with the institution of an application for, and the ordering of, an inquiry. Significantly, s 422(1) prescribes seven necessary preconditions that must be satisfied before an inquiry can be ordered, as follows:
422 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.
The Executive has an independent power under s 423 to order an inquiry on its own initiative, but that power is, no doubt, constrained by the requirements of s 422. Alternatively, the Supreme Court may order an inquiry under s 424. The registrar must give a copy of the application for an inquiry to the Attorney-General, and the Supreme Court may also consider written submissions of the Attorney-General or the Director of Public Prosecutions or both in relation to the application. Section 424(4) provides that proceedings on such an application are not judicial proceedings. Where the Supreme Court makes an order for an inquiry, the registrar must give a copy of the order to the Attorney-General (s 424(5)). Section 425 emphasises that Div 20.2 does not create any rights of a person to an order for an inquiry or impose any duty to order one, and there is no right of appeal in relation to a decision whether to order an inquiry.
Division 20.3 deals with the procedure for the conduct of the inquiry. The inquiry must be constituted by a board, being a judicial officer, namely, either a judge of the Supreme Court or a magistrate, and, subject to variations to the requirements concerning its report, the inquiry is conducted under the Inquiries Act 1991 (ACT). After completing an inquiry, the board must give a copy of the written report of the inquiry to the registrar of the Supreme Court under s 428(1). The board must also give the registrar, together with the report, “for safe keeping, any documents or things held by the board for the purpose of the inquiry” (s 428(2)). However the Supreme Court may exercise its powers under Division 20.4 in relation to the report even if the board does not comply with the requirements of s 428(2).
Sections 430 and 431 are part of the third stage of the legislative scheme. Division 20.4 deals with what is to happen following the delivery of the board’s written report to the registrar. Under s 429(1), the registrar must give a copy of the report to the Attorney-General and the convicted person, together with any order made under that section as to non-disclosure of the report or any part of it. Relevantly, the Supreme Court may make an order that the report or particular parts of it be disclosed only to particular people or on stated conditions, but only if it considers that it is in the interests of justice to do so, having regard to the public interest and the interests of the convicted person. An order under the section can be enforced in the same way as any other order of the Supreme Court.
Sections 430 and 431 provide:
430 Action on report by Supreme Court
(1)The Full Court must consider the report of a board into an inquiry.
(2)Having regard to the report, the Full Court must, by order –
(a)confirm the conviction; or
(b)confirm the conviction and recommend that the Executive act under either of the following sections of the Crimes (Sentence Administration) Act 2005 in relation to the convicted person:
(i)section 313 (Remission of penalties);
(ii)section 314 (Grant of pardons); or
(c)quash the conviction; or
(d)quash the conviction and order a new trial.
(3)The registrar must give a copy of the order, together with any reasons given for the order, to the Attorney-General and the convicted person.
(4)This section does not give the convicted person a right to an order of the Full Court mentioned in subsection (2) (b), (c) or (d), or to an Executive pardon or remission.
431 Nature of Supreme Court proceedings
(1)In considering whether to make an order under this part about a report, the Supreme Court –
(a)may have regard only to matters stated in the report, or to documents or things given to the registrar with the report; and
(b)must not hear submissions from anyone.
(2)The consideration of whether to make an order under this part is not a judicial proceeding. (emphasis added)
Although Mr Eastman's conviction preceded the enactment of the current provisions of Part 20, there is no doubt that its provisions apply to him by force of s 432.
For the purpose of construing the Crimes Act, s 120 of the Legislation Act 2001 (ACT) relevantly provides:
120 Act to be interpreted not to exceed legislative powers of Assembly
(1)An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
(2)Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly –
(a)the provision is valid to the extent to which it does not exceed power; and
(b)the remainder of the Act is not affected.
(3)Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision’s application to other matters is not affected.
The parties’ arguments
Following the service of notices under s 78B of the Judiciary Act 1903 (Cth), we heard submissions today from the Director, Mr Eastman, the Attorney-General for the Australian Capital Territory representing the Territory, and the Attorney-General for the Commonwealth. All parties say that, despite s 431(2), the exercise of the Full Court's power under s 430(2) is the exercise of judicial power. However, they are at odds as to the reconciliation of the two provisions.
There are questions as to how s 431 applies, if at all, to the making of an order under s 430, and, if it does, whether s 431 is wholly or partly valid, or, if not, if it is severable. In addition, there is a question as to who are the parties to the proceedings under s 430, namely whether, in addition to the convicted person, one or both the Director or the Attorney-General is a party or are parties.
The Director also contended that the report affected him adversely because he had been denied procedural fairness in that Martin AJ had heard evidence that was kept confidential from all of the persons granted leave to appear at the inquiry but to which his Honour referred in the determinative part of his reasoning in the report.
The Director and the Territory argued that it may be possible for the Full Court to engage in judicial review in respect of the report. They contended that the Full Court could decide that the report may be affected by a jurisdictional error so that it might not amount to a report at all within the meaning of s 428(1), and that, if it were not, it could not be considered by the Full Court under s 430(2).
The Director also argued that he could lead evidence about, first, his not having been heard concerning the evidence taken by Martin AJ in camera, and secondly, potentially, other matters.
The Director argued that s 430(2) required the Full Court to engage in the same process as a court of criminal appeal when hearing an argument on appeal that a verdict leading to a conviction was unsafe and unsatisfactory in accordance with Weiss v The Queen (2005) 224 CLR 300. That would require, so it was argued, the Full Court to review the whole of the record of the trial, in this case one that extended over six months, together with everything that was before the board.
The Director referred to what Gummow, Hayne and Crennan JJ had said in R v Hillier (2007) 228 CLR 618 at 638-639 [48]-[49] in support of his proposition that the Full Court could not decide a circumstantial case, such as that made at trial against Mr Eastman, piecemeal, and that it had to undertake an extensive process of factual consideration of all the material to which Martin AJ had referred.
The Director and the Territory argued that s 431 should be construed so that it did not apply to the Full Court when acting under s 430. Mr Eastman maintained that s 431 did apply to the way in which s 430 operated, but that its application did not affect the judicial nature of the Full Court's task under the latter section. Both Mr Eastman and the Territory argued that the making of submissions to the board or Martin AJ was sufficient for the purposes of the Full Court discharging its task under s 430(2) and that the Full Court could therefore proceed to make an order under s 430(2) without hearing submissions from anyone.
The Director contended that procedural fairness required that, on a hearing by the Full Court under s 430(2), further evidence and submissions could, and here should, be taken.
The Territory argued that the report was like a report of a referee on a reference by a superior court to a referee to try a proceeding or issues in a proceeding. The Commonwealth said that the proceedings on the inquiry and its report were not capable of that characterisation.
Both Mr Eastman and the Territory argued that there was no need for any further submissions. Mr Eastman, the Territory and the Commonwealth contended that s 430(1) could confine the evidentiary material to what was in the report and what was delivered for safe-keeping to the registrar under s 428(2).
The nature of an order under s 430(2)
In a much cited passage, in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357, Griffith CJ said:
I am of opinion that the words ‘judicial power’ as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
The determination of criminal guilt and the trial of actions for breach of contract and for civil wrongs are inalienable exercises of judicial power: HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 562 [15] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. The exercise of judicial power with respect to trials on indictment is spent upon the imposition of sentence on a convicted person, subject to any right of appeal, with the result that the controversy previously presented by the plea of not guilty to the indictment has been quelled: Elliott v The Queen (2007) 234 CLR 38 at 41-42 [5] per Gummow, Hayne, Heydon, Crennan, Kiefel JJ. And, in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 351 [98], Heydon J, with whom Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreed, said that “[o]nly a court can quash a conviction”.
There is a constitutional principle that the institutional integrity of federal, State and Territory Courts is protected from legislative and executive incursion: Wainohu v New South Wales (2011) 243 CLR 181 at 228-229 [105] per Gummow, Hayne, Crennan and Bell JJ. Thus, legislation that provides for the conferral of functions upon a judge or court by reference to his, her or its judicial office or status as a court will be invalid if the functions are repugnant to, or are incompatible with, that institutional integrity (243 CLR at 228-229 [105]-[106]). Their Honours explained this by adopting what Mason and Deane JJ had said in Hilton v Wells (1985) 157 CLR 57 at 83-84 in the following passage:
when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity. To the intelligent observer, unversed in what Dixon J accurately described – and emphatically rejected – as ‘distinctions without differences’ ([Medical Board of Victoria v] Meyer (1937) 58 CLR 62 at 97), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade.”
The confidence reposed in judicial officers depends upon their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue, by ascertaining the facts and the law in applying the law as it is to the facts as they are: Wainohu 243 CLR at 225 [94].
Section 430(1) requires the Full Court to consider the report of a board. As mentioned above, s 421 defines “Full Court” as meaning the Supreme Court constituted by a Full Court. That definition, and the conferral of different functions and powers on the Supreme Court and the Full Court in different sections in Part 20, as well as within Div 20.4, no doubt sought to distinguish the functions and powers that the Supreme Court had when constituted by a single judge from those of a Court constituted as a Full Court.
Importantly, s 430(2) requires the Full Court to have regard to the report, and to make one of the four orders for which it provides. The effect of a legislative requirement that a Court or decision-maker “have regard to” a matter is well known. In R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329, Mason J, with whom Gibbs J agreed at 324, explained the significance of a statutory requirement that a decision-maker have regard to one matter alone, in that case being costs necessarily incurred in providing nursing home care in a particular nursing home, when determining a scale of fees. Mason J held that the expression “have regard to”, when used in a statute, required the decision-maker to take the identified subject (or subjects), there costs, into account and to give the, or each such, subject weight as “a fundamental element in making his determination”: Sean Investments 180 CLR at 329. He explained that, in that case, there were two reasons to support such a construction. First, costs were the only subject explicitly mentioned in that statutory provision as a matter to be taken into account and, secondly, the scheme of the provisions was that, once an approval were given, the proprietor of the nursing home was never to exceed the scale of costs fixed by the decision-maker.
Accordingly, when required by statute to have regard to a particular matter, a decision-maker must give weight to that matter as a fundamental element in making his, her or its decision. In R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, Gibbs CJ applied what Mason J had said in Sean Investments 180 CLR at 329 to a statutory requirement that a decision-maker take a number of matters into account; see too Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] per Rares J, approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ.
Here, the Full Court, having had regard to the report, must form a state of satisfaction, involving some element of discretion, in determining which of the four possible orders nominated in s 430(2) it should make. The Full Court may also have regard to other matters, but those matters, ordinarily, are not required to be given the same weight by reason of the decisions to which we have referred. However, that process of consideration may vary depending on the circumstances. Section 430(4) emphasises that a convicted person has no right to obtain an order by the Full Court of any of the kinds referred to in s 430(2)(b), (c) or (d), or to the Executive’s remission of any penalty or grant of a pardon. Nonetheless, if an order with a recommendation were made under s 430(2)(b), the Executive must have regard to the recommendation of the Full Court in determining whether to remit the penalty or grant a pardon.
For these reasons, the Full Court’s function of making an order under s 430(2) is necessarily judicial, affecting as it does the legal status of the conviction: Eastman 214 CLR at 351 [98].
Does s 431(1) apply to proceedings under s 430?
In contradistinction to the jurisdiction that s 430 confers in terms on the Full Court, s 431(1) refers to the Supreme Court. In our opinion, the expression in the chapeau to s 431(1), “In considering whether to make an order under this part about a report, the Supreme Court” does not refer to the Full Court’s jurisdiction to determine what order it should make pursuant to s 430(2). An order under s 430(2) is about the conviction, not the report. The report is a relevant consideration for the Full Court when it decides what order it will make under s 430(2) about the conviction. But, the Full Court’s function under s 430(2) is not correctly characterised as “considering” the making of an order “about the report”. Rather, under s 430(2), the Full Court must consider making an order about the convicted person's conviction and whether it should be confirmed or quashed absolutely or conditionally.
For those reasons, in our opinion s 431(1) does not apply to the deliberations of the Full Court.
Does s 431(2) apply to proceedings under s 430?
Likewise, s 431(2) deals with the “consideration of whether to make an order under this part”. That provision does not apply to the function of the Full Court under s 430(2). The Full Court is not engaged in the task under s 430(2) of considering whether to make an order under Part 20. Rather, it must make, in the sense of being required to make, an order under s 430(2), having regard to the report. It has no discretion as to whether or not it should make an order under s 430(2), albeit that it has a discretion as to which of the four possible orders it should make under that provision. The Full Court must do so by arriving at a state of mind as to which of the four orders open to it under s 430(2) is the correct one to make.
There are other provisions in Part 20, such as ss 423, 424 (albeit that s 424 has a similar provision in ss 424(4)) and 429 to which both subsections of s 431 may apply. Because we have concluded that neither of them applies to s 430(2), it is not necessary to consider whether either of s 431(1)(b) or (2) is valid.
Is s 431 valid if it applies to proceedings under s 430?
Lest the construction at which we have arrived be in error, we have considered whether any part of s 431 is valid. In our opinion, s 431(1)(a) can have a valid operation if, contrary to the construction at which we have arrived, it applies to the evidence available for the consideration of the Full Court under s 430(2).
A legislature can enact a law that limits the factual substratum that a court is entitled to consider in the exercise of a power that the legislation gives to the Court: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 531 [40], 535-536 [54]-[55] per Gleeson CJ and McHugh J, 593-594 [240] per Kirby J and see too at 606 [283] and 607 [289] per Callinan J. Accordingly, we are of opinion that s 431(1)(a) is within legislative power.
However, in our opinion, s 431(1)(b) would be invalid if it applied to s 430(2). It is impossible to conceive of a judicial proceeding, or the exercise of judicial power, that bears the character of being judicial, if the court cannot hear submissions under any circumstances from any person affected. It is fundamental to the exercise of judicial power that a Court be capable of hearing from the parties who may be affected by the exercise of that power under fair and proper procedures when exercising it: Wainohu 243 CLR at 225 [94], 228-229 [105]-[106]; see too: Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396 per Dixon CJ and Webb J. The exclusion of all rights of the parties to make submissions on any matter arising in a situation in which the Full Court is called upon to make an order affecting rights as fundamental as whether a person’s conviction should stand or not cannot be a characteristic of judicial proceedings. The absolute denial, in a statute, of the right to be heard of any person affected by an order that a court must make confirming or quashing a conviction or affecting a sentence cannot be a fair and proper procedure to determine that matter: Wainohu 243 CLR at 225 [94].
The board was not sitting as a court. The board did not have the jurisdiction or power to make any of the orders that s 430(2) contemplates. The Legislative Assembly conferred jurisdiction on the Full Court under that section to act as a court of law in making an order confirming or quashing the relevant conviction. The public would have every reason not to have confidence in a decision of the Full Court that was made in obedience to a requirement that it not hear from either the prosecutor or convicted person where one, or both, of those parties wished to be heard about such a fundamental matter. The procedure of the Full Court is not that of an inquiry.
Neither party knew in advance of the publication of its report what the board would find as fact or recommend as an order that the Full Court should make. Neither party has been heard on the report’s findings or recommendations. The Full Court could not do justice without hearing the arguments of the parties as to what order should be made under s 430(2).
Finally, if s 431(2) applies to the making of an order under s 430(2), then it is impossible to reconcile it with the exercise of judicial power. Counsel for Mr Eastman advanced an argument that the words “judicial proceeding” in s 431(2) referred only to the Rules of Court. That argument must be rejected. In our opinion, if s 431(2) had application to s 430(2), the plain meaning of that provision would require the Full Court to exercise a power that was inalienably judicial, namely, determining whether a conviction should be quashed or confirmed, using a procedure that was inherently antithetic to the judicial process. Courts sit in public and hear and determine arguments based on evidence before them. They must apply the law to the facts as found: Wainohu 243 CLR at 225-226 [94]. As Barwick CJ, Gibbs, Stephen and Mason JJ said in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263:
It is of fundamental importance that the public should have confidence in the administration of justice.
Are s 431(1)(b) and (2) severable?
Had we been of opinion that either or both s 431(1)(b) or (2) applied to the power to be exercised under s 430(2), those sections were clearly severable. The purpose of the legislative scheme in Part 20 is to enable the Full Court to make the appropriate order with respect to a conviction of a person having regard to the report of an inquiry into whether that conviction ought be confirmed or quashed, and on what, if any, conditions.
A court must construe a statute under provisions such as s 120 of the Legislation Act in a way that, so far as possible, gives it a valid, rather than invalid, operation. Thus, in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (and see too Wainohu 243 CLR at 226-227 [97]):
Moreover, legislation ‘must not be read in a spirit of mutilating narrowness’. If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open. Courts in a federation should approach issues of statutory construction on the basis that it is a fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid. Here there are two competing constructions – one spells invalidity, one does not. That being so, we should adopt the construction that saves the section and reject the construction upon which the defendants rely. (footnotes omitted)
Counsel for Mr Eastman argued that French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354 [54] and Hayne, Crennan, Kiefel and Bell JJ in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 at 681-682 [156] had suggested that the rules of procedural fairness could be excluded by legislation while nonetheless preserving the judicial character of proceedings.
In our opinion, in each of those cases the Court was dealing with a different factual and legal situation and was not intending to advance a general proposition that a statutory provision would be valid if it were expressed as widely as s 431(1)(b) or (2) is or are if they were to operate in relation to the exercise of the jurisdiction that s 430(2) confers on the Full Court.
Indeed, in Pompano 295 ALR at 682 [157], Hayne, Crennan, Kiefel and Bell JJ said that the adversarial system of justice assumes, as a general rule, that opposing parties will know what case an opposite party sought to make and how the party seeks to make it. However, there are situations where a departure from the ordinary procedures of a court may be possible by reason of the nature of the proceedings or novel procedures imposed by legislation. But, their Honours said there that, if legislation imposed such a departure from the ordinary incidents of our system of justice, “the question is whether, taken as a whole, the court’s procedures for resolving the dispute accord both parties procedural fairness and avoid ‘practical injustice’”.
Applying that test to each of s 431(1)(b) and (2), if it applied to s 430(2), it is apparent that neither party would be accorded any right to be heard or receive practical justice. Nor could the application of either of s 431(1)(b) or (2) to s 430(2) be justified as a provision that was necessary in the interests of justice or to enable the Full Court to do justice within the established exceptions justifying departure from the principles of open justice, such as in cases concerning trade secrets, wards of court and persons of unsound mind, where it is necessary to exclude the public or limit the disclosure of evidence in order to do, rather than defeat, justice: Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC applied in Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]-[32] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
For these reasons, we are of opinion that s 431 has no application to the Full Court’s proceedings under s 430 and that those proceedings have the ordinary incidents of a hearing in the exercise of judicial power.
The parties to proceedings under s 430
The next issue is, who the parties are to the proceedings under s 430. The controversy leading to a conviction was one between the parties to the original criminal proceedings, in this case the Director and Mr Eastman. If the conviction is either confirmed or quashed under s 430(2), the rights of each of the Director and Mr Eastman, and only their rights, will be affected. Such a decision does not affect, directly, any other person. The Territory did not suggest otherwise. In those circumstances, it seems to us that the proper parties to the proceedings under s 430 are the Director and Mr Eastman.
It may be that, in an appropriate case, the Attorney-General may seek to intervene and be heard. It is likely, however, that the purpose for which s 430(3) requires that the Full Court’s order be given to the Attorney-General is because the order will determine how the convicted person is to be treated; that is, whether the Attorney-General as the officer of the Executive responsible for maintaining the prison system will be obliged to keep the convicted person in prison or release him or her (subject to whether there exist any other grounds for that person to be held in or remanded in custody, or given bail, if a conviction were quashed). Ordinarily, the Attorney-General would then be expected to carry the order into execution so as to maintain the imprisonment in accordance with law, have the Executive deal with any recommendation under s 430(2)(b) or, were the conviction quashed, to cause the convicted person to be released if there were no other basis for his or her continued imprisonment or remand or to make arrangements for a new trial.
We would observe that the argument that the Director appeared to advance, that the report was either valid or invalid in the sense of being affected by jurisdictional error by reason of its taking into consideration evidence kept confidential from the Director, can be dealt with at a hearing under s 430(2). In particular, such an argument may need to address what Hayne, Crennan, Kiefel and Bell JJ discussed in Pompano 295 ALR at 680-681 [152]. Their Honours considered the ability of a legislature to enact a statute that provided that certain evidence would not be seen by anyone other than the tendering party and the Court where the Court retained a discretion as to whether or not to act on that material.
Conclusion
For these reasons, we are satisfied that the declarations that the Director has sought in paragraphs 1 and 2 of his originating application be made, namely:
(1)the determination of the Full Court as to the appropriate order to be made pursuant to s 430(2) of the Crimes Act involves an exercise of judicial power;
(2)s 431 of the Crimes Act does not apply to the Full Court’s exercise of its jurisdiction or power under s 430(2).
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares, Justice Wigney and Acting Justice Cowdroy. Associate: Date: 7 August 2014 |
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