Eastman v Director of Public Prosecutions (No 2)
[2014] ACTSCFC 2
•22 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Eastman v Director of Public Prosecutions [No 2] |
Citation: | [2014] ACTSCFC 2 |
Hearing Dates: | 14, 15, 24 July 2014 |
DecisionDate: | 22 August 2014 |
Before: | Rares J, Wigney J, Cowdroy AJ |
Decision: | The Court orders that: (1) the conviction of David Harold Eastman for the murder on 10 January 1989 of Colin Stanley Winchester be quashed (2) there be a new trial of David Harold Eastman on the charge of murder |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – INQUIRY INTO CONVICTION – construction of s 430(2) of Crimes Act 1900 (ACT) – consideration of “test” to be applied in deciding what order to be made under s 430(2) – effect of s 422(1) of Act on Court’s exercise of power and function to make order under s 430(2) – meaning of “conviction” in the context of s 430(2) – whether Court can quash conviction as a result of miscarriage of justice or other defect in the trial – whether necessary for Court to decide whether person is “guilty” in fact – relationship between powers of Court under s 430 and usual powers of courts of criminal appeal – whether to order new trial – relevant considerations in exercise of discretion to order new trial CRIMINAL LAW – INQUIRY INTO CONVICTION – power of board to receive information and evidence in private without permitting access to parties – procedural fairness hearing rule – whether board can give confidential report to Registrar under s 428 of Crimes Act 1900 (ACT) to which parties not have access – whether Full Court can consider confidential report of board – construction of ss 18, 21, 24 of Inquiries Act 1991 (ACT) and Pt 20 of Crimes Act EVIDENCE – CRIMINAL LAW – public interest or matter of state immunity – public interest in maintaining confidentiality of identity of informers – whether Court has discretion to admit evidence subject to immunity under s 130 of Evidence Act 2011 (ACT) or otherwise – power to admit evidence subject to immunity while denying access to parties – whether admission of evidence in those circumstances interferes with or impairs the Court’s institutional integrity or independence COURTS AND JUDGES – principle of open justice – suppression and non-publication orders to protect confidential information and evidence – informers – power of superior court of record to receive and act on information or evidence that none of parties has seen – inherent powers of superior court |
Legislation Cited: | Crimes Act 1900 (ACT) |
Cases Cited: | Alexander v The Queen (1981) 145 CLR 395 applied |
Texts Cited: | DC Pearce & RS Geddes: Statutory Interpretation in Australia (7th ed, 2011) |
Parties: | David Harold Eastman Director of Public Prosecutions |
Representation: | Counsel: Mr M Griffin QC with Mr A Flecknoe-Brown Mr J Kirk SC with (on 14 and 15 July 2014) Ms A Mitchelmore and Dr P Dwyer |
| Solicitors: Legal Aid ACT ACT Office of the Director of Public Prosecutions | |
File Number: | SC 222 of 2014 |
TABLE OF CONTENTS
| Introduction The legislative scheme The construction issue The parties’ arguments on construction A brief summary of the issues in the report Director’s submissions as to the board’s reception and use of confidential information The Full Court’s powers as a superior court of record Conclusion – the confidentiality issue The conviction issue – consideration Retrial – the parties’ submissions Conclusion |
THE COURT:
On 3 September 2012, a judge of the Court made an order under s 424(1) of the Crimes Act 1900 (ACT) than an inquiry be held into the conviction on 3 November 1995 of David Harold Eastman for the murder of Colin Stanley Winchester on 10 January 1989. On 29 May 2014, Martin AJ, who conducted the inquiry, gave his report to the Registrar of the Court. His Honour recommended that the Full Court make an order under s 430(2)(c) of the Crimes Act that the conviction be quashed and that no retrial be ordered. Martin AJ found that a substantial miscarriage of justice had occurred in Mr Eastman’s trial.
Section 430(2) requires the Full Court to have regard to the report and to make an order that either confirms or quashes the conviction. For the reasons that follow we have decided to make an order quashing the conviction and ordering a new trial.
Introduction
At about 9.15 pm on 10 January 1989, Mr Winchester was shot twice, once in the back of his head behind his right ear and then in the right side of his face. He died instantly. He had been commencing to alight from his car after parking in his neighbour’s driveway.
Mr Eastman’s trial for Mr Winchester’s murder commenced on 2 May 1995 before Carruthers AJ and a jury of 12. On 3 November 1995, the jury returned its verdict of guilty. On 10 November 1995, the trial judge sentenced Mr Eastman to imprisonment for life. Mr Eastman’s bail had been revoked during the trial, on 29 June 1995, and he has remained in prison since then.
Mr Eastman appealed unsuccessfully against his conviction to the Full Court of the Federal Court (Eastman v The Queen (1997) 76 FCR 9) and to the High Court (Eastman v The Queen (2000) 203 CLR 1).
On 3 September 2012, a judge of the Court made an order under s 424(1) of the Crimes Act that ordered an inquiry into the conviction of Mr Eastman in relation to the matters specified in paragraphs 1-19 in the order (the s 424 order).
In September 2012, the Executive appointed Duggan AJ to constitute the board of inquiry under s 427(1) of the Crimes Act and the Inquiries Act 1991 (ACT). However, in the course of conducting the inquiry, his Honour came upon material that caused him to recuse himself on 22 July 2013. On 23 July 2013, the Executive appointed Martin AJ to constitute the board of inquiry and his Honour continued the work of the inquiry commenced under Duggan AJ.
On 11 November 2013, Martin AJ commenced taking oral and written evidence at public hearings of the inquiry. The inquiry finished hearing oral evidence on 12 April 2014. Persons who had been granted leave to appear at the inquiry concluded their oral and written submissions on 15 May 2014. Among others, Mr Eastman and the ACT Director of Public Prosecutions, who had prosecuted at the trial, appeared at the inquiry.
On 29 May 2014, Martin AJ gave a copy of the written report of the inquiry to the Registrar pursuant to s 428(1), together with a volume of annexures and other documents or things as referred to in s 428(2) of the Crimes Act. The report was in two sections, the first consisting of 447 pages containing 1,838 paragraphs, and the second consisting of a short confidential portion that his Honour ordered not be disclosed to any person without an order of a judge (the confidential section).
His Honour suggested that some redactions be made to the first section of the report, principally in relation to its consideration of paragraphs 12 and 13 of the s 424 order. Those paragraphs concerned a doubt or question as to an alternative hypothesis concerning the identity of an offender other than Mr Eastman. On 29 and 30 May 2014, the Chief Justice made orders providing that the redactions suggested by Martin AJ apply to copies of the report that were to be made available publicly and provided to some persons who had been granted leave to appear before the inquiry. Her Honour suppressed entirely the contents of the confidential section. Only we have read the confidential section and it has not been seen by Mr Eastman, the Director or their lawyers.
The board concluded its report with the recommendation that the Full Court make an order quashing Mr Eastman’s conviction pursuant to s 430(2)(c) of the Crimes Act. His Honour did so principally because he found that Mr Eastman had not received a fair trial according to law. Martin AJ explained the reasons for his recommendation in his final conclusions as follows ([1831]-[1838]):
CONCLUSION
1831. The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal. As a consequence, a substantial miscarriage of justice has occurred.
1832. The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material. In addition, evidence of inadequacies and flaws in the case file and case work of the key forensic scientists were unknown to everyone involved in the investigation and trial.
1833. A substantial miscarriage of justice occurred in 1995, as a consequence of which the applicant has been in custody for almost 19 years. For numerous reasons, a retrial is not feasible. Notwithstanding that the question of a retrial could arise for consideration of the Full Court, the DPP did not undertake any investigations in that regard and declined to make submissions concerning this issue. In my view, the passing of so many years, coupled with the death of numerous witnesses and publicity prejudicial to the applicant, mean that a further trial would be unfair both to the prosecution and to the applicant. A retrial would not be in the best interests of the community.
1834. The AFP and DPP contended that even if the evidence of Mr Barnes is put aside, and the evidence of Dr Roantree is modified, an overwhelming case exists against the applicant. On this basis they submitted that I should recommend that the conviction stand. As part of this submission the DPP contended that I should have regard to material not led at trial concerning Mr Klarenbeek (annexure 7 [128]). Leaving aside issues of admissibility, in my view the competing arguments would result in this additional evidence having minimal impact.
1835. I am unable to agree with the submission that the case is ‘overwhelming’. While a strong circumstantial case remains, based on the admissible and properly tested evidence the case for the prosecution is not overwhelming. There is also material pointing to an alternative hypothesis consistent with innocence, the strength of which is unknown.
1836. I am fairly certain that the applicant is guilty of the murder of the deceased, but a nagging doubt remains. Regardless of my opinion as to the applicant’s guilt, in my view the substantial miscarriage of justice suffered by the applicant should not be allowed to stand uncorrected. To allow such a miscarriage of justice to stand uncorrected would be contrary to the fundamental principles that guide the administration of justice in Australia and would bring the administration of justice into disrepute. Allowing such a miscarriage of justice to stand uncorrected would severely undermine public confidence in the administration of justice.
1837. In view of the nature of the miscarriage of justice, and the lengthy period that the applicant has spent in custody, and in view of the powers conferred on the Full Court, I do not recommend that the Court exercise the power in section 430(2)(b)(ii) to confirm the conviction and recommend that the Executive grant a pardon. The Legislature determined that the Full Court should possess wider powers than the Executive power of pardon to be exercised in appropriate circumstances. In my opinion the circumstances disclosed by this Inquiry strongly support the exercise of the power to quash the conviction (section 430(2)(c)).
1838. For these reasons I recommend that the conviction of the applicant on 3 November 1995 for the murder of the deceased be quashed. (emphasis added)
On 23 June 2014, we gave reasons why the jurisdiction conferred on the Full Court by s 430(2) of the Crimes Act involves the exercise of judicial power: Eastman v Director of Public Prosecutions [2014] ACTSCFC 1. We held that Mr Eastman and the Director were the parties to proceedings under s 430(2) and that they had the right to tender evidence in addition to the report and to make submissions. Each of them did so at the hearing.
The issues that must now be decided are:
(a)What is the proper construction of s 430(2) and, in particular, is it confined to a doubt or question as to whether Mr Eastman actually committed the murder or does it extend to whether, as Martin AJ considered, there was a doubt or question as to whether the process through which the jury convicted conformed with the requirements of a criminal trial? (the construction issue)
(b)Was the inquiry or report vitiated by jurisdictional error because Martin AJ heard and received evidence in private to the exclusion of the Director and or prepared the confidential section of the report? (the confidentiality issue)
(c)Should the conviction be quashed? (the conviction issue)
(d)Should a new trial be ordered? (the new trial issue)
The legislative scheme
Part 20 of the Crimes Act and the Inquiries Act together provide the framework for an inquiry into a conviction and the role of the Full Court in respect of what consequences flow from the report of the inquiry. It is necessary to set out the critical provisions of those Acts in order to explain the way in which s 430(2) should be construed. Relevantly, the Crimes Act provides in Part 20:
421 Definitions for pt 20
In this part:
Full Court means the Supreme Court constituted by a Full Court.
inquiry means an inquiry under this part into a person’s conviction for an offence (whether summarily or on indictment).
…
relevant proceeding, in relation to an offence, means a prosecution or other proceeding in relation to the offence, including an appeal in relation to the finding of a court in relation to the offence.
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.
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. (bold non-italic emphasis added)
The Executive may order an inquiry under s 423 and the Supreme Court has power to order one under s 424. If an inquiry is ordered, s 427(1) and (3) require the Executive to appoint a board of inquiry under the Inquiries Act to be constituted by a judge of the Supreme Court or a magistrate. Importantly, s 427(2) provides:
(2)The inquiry must be stated in the appointment to be in relation to the matter stated in the order, and in relation to no other matter.
The critical provision of Part 20 is s 430, which is as follows:
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. (bold non-emphasis added)
The Inquiries Act provides in s 13 that the inquiry must be conducted in the manner the board determines, except as otherwise provided in that Act. Next, s 18 provides:
18 Procedure
In conducting an inquiry, a board –
(a) must comply with the rules of natural justice; and
(b)is not bound by the rules of evidence but may inform itself of anything in the way it considers appropriate; and
(c)may do whatever it considers necessary or convenient for the fair and prompt conduct of the inquiry. (emphasis added)
The board can hold hearings, but these must be in public under s 21(1) and (2) unless the board acts under the following powers in s 21(3) and (4):
(3)If a board is satisfied that it is desirable to do so because of the confidential nature of any evidence or matter, or for any other reason, the board may –
(a)direct that a hearing or part of a hearing must take place in private and give directions as to the people who may be present; and
(b)give directions prohibiting or restricting the publication of evidence given at a hearing (whether in public or private) or of matters contained in documents lodged with, or received in evidence by, the board; and
(c)give directions prohibiting or restricting the disclosure to some or all of the people present at a hearing of evidence given before, or the contents of a document lodged with or received in evidence by, the board.
(4)In considering whether to give a direction under subsection (3), a board must take as the basis of its consideration the principle that it is desirable that hearings be in public and that evidence given before, or the contents of documents lodged with or received in evidence by, the board should be made available to the public and to all people present at the hearing, but must pay due regard to any reasons given to the board why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted. (emphasis added)
Importantly, s 24 provides:
24 Presence of people at private hearings
If a hearing is being held in private, a person must not be present at the hearing unless the person is –
(a) a member; or
(b) a member of the staff of the board directed to be present; or
(c) a lawyer assisting the board; or
(d) giving evidence before the board; or
(e)entitled under a direction under section 21 (3) (a) to be present. (emphasis added)
The construction issue
In terms, s 430(2) does not identify a test that the Full Court must apply, after it has had regard to the report, so as to select which one of the four orders that the section requires that it make.
The Full Court must choose one of those four orders as the means of resolving the controversy, having regard to the report and any other matters or submissions, as to the doubt(s) or question(s) identified in the order for the inquiry made under s 422(2) about whether the person is guilty of the offence. Both parties accepted that s 422(1) was relevant to the exercise of the Court’s power and function under s 430(2), but they differed as to the way in which s 422(1) affected that exercise.
The parties’ arguments on construction
The Director argued that, for the purposes of the process of selecting which order to make under s 430(2), s 422(1)(a) required that the Full Court have regard to whether the person was or was not in fact guilty as opposed to whether the conviction, the subject of the inquiry and any order under s 430(2), reflecting a finding of guilt, was unsafe or not arrived at according to law. He contended that each of paragraphs (b)-(g) in s 422(1) referred to the doubt or question identified in paragraph (a) about whether the person was in fact guilty. He submitted that the doubt or question was further confined by the requirement in s 422(1)(b) that it relate to evidence, or a material fact, not admitted in evidence, as distinct from any other feature of the trial or any appeal. The Director contended that the reference to “a significant risk that the conviction is unsafe because of the doubt or question” in s 422(1)(d) “resonated” only with the provisions of the common form of criminal appeal legislation granting power to the Court to set aside the verdict of the jury on the ground that it is unreasonable or cannot be supported having regard to the evidence (see e.g. s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT)).
Moreover, the Director argued that s 422(1)(d) did not extend the scope of an inquiry, or the jurisdiction of the Full Court, to permit consideration of whether there was any other basis for confirming or quashing the conviction, including whether there was a, or a substantial, miscarriage of justice or whether, if there were, the appeal should nonetheless be dismissed under the “proviso”: i.e. that although the point raised by the appeal might be decided in favour of the appellant, no substantial miscarriage of justice actually occurred, as provided in s 37O(2)(a)(iii) and (3).
Mr Eastman argued that the appropriate test for an order under s 430(2) was whether there had been a miscarriage of justice. He contended that the Full Court’s powers were as broad as those of a court of criminal appeal under provisions such as s 37O.
Construction of s 430 - Consideration
The principles of statutory construction are well settled. French CJ, Hayne, Crennan, Bell and Gageler JJ said in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268-269 [39]:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’ [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (emphasis added)
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ. Their Honours then emphasised the importance of context (and see too Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704 at 707-710 [12]-[15] per Allsop P with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed), saying (194 CLR at 381-382 [69]-[70]):
In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed [Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 per Gummow J]. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’ [Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (emphasis added)
The structure of the process for an inquiry provided in Part 20 is important. By dint of ss 422(2) and 427(2), the subject-matter of the inquiry into the person’s conviction is the one or more doubts or questions identified in the order for the inquiry. Thus, the matters stated in the order for the inquiry define, and limit, the subject-matter and the ambit of the inquiry by force of ss 422(2) and 427(2). The terms of s 422(1) identify the circumstances in which an inquiry may be ordered, but they do not apply directly to the conduct of the inquiry once it is ordered. The subject-matter of the inquiry might or might not concern the whole trial, but it will be limited to the particular matters identified in the order for the inquiry, as ss 422(2) and 427(2) provide.
Contrary to the Director’s argument, s 422(1) does not govern or control the manner in which the Full Court exercises its jurisdiction to make an order under s 430(2). Nonetheless, s 422(1) is relevant to that exercise because of its place in Part 20 and the statutory scheme in the Crimes Act.
Once there is an order for the inquiry, the function of the board is to enquire into the matters stated in that order. The function of the Full Court is to have regard to the board’s report of its inquiry and then to make an order under s 430(2). Clearly enough, the matters that an order for an inquiry will state must be a doubt(s) or question(s) that the Supreme Court (or Executive, which is not affected by s 422(1)(f)) found satisfied each applicable criterion in s 422(1).
The written report of the inquiry under s 428 necessarily must deal with whether or not the specific, identified doubt(s) or question(s) has or have been dispelled or confirmed. The inquiry cannot go into matters wider than those stated in the order for the inquiry. This is because, when the Executive appoints a board of inquiry, s 427(2) requires that the appointment be “in relation to the matter stated in the order, and in relation to no other matter”.
The inquiry, as defined in s 421, is conducted under Part 20 into a person’s conviction for an offence. The word “conviction” is not defined in Part 20. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 206 [137] Hayne J, with whom Gleeson CJ and McHugh J agreed, said:
As Dawson and McHugh JJ said in Maxwell v The Queen [(1996) 184 CLR 501 at 507], ‘[t]he question of what amounts to a conviction admits of no single, comprehensive answer’. The word has long been recognised as being used in various ways [Cobiac v Liddy (1969) 119 CLR 257 at 271, per Windeyer J; Burgess v Boetefeur (1844) 7 Man & G 481 at 504 [135 ER 193 at 202], per Tindal CJ]. In particular, there may well be a question whether conviction depends upon verdict or plea, or upon the sentence of the court [Cobiac (1969) 119 CLR 257 at 271, per Windeyer J; Maxwell v The Queen (1996) 184 CLR 501 at 507, per Dawson and McHugh JJ; at 519-521, per Toohey J; at 529-531, per Gaudron and Gummow JJ].
Indeed, in Burgess v Boetefeur (1844) 7 M & G 481 at 504 [135 ER 193 at 202], Tindal CJ said:
The word ‘conviction’ is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court. (emphasis in original)
In their instructive reasons in Hinton v The Queen (2000) 177 ALR 300 at 304-305 [15]-[20], Miles, Madgwick and Weinberg JJ discussed the various senses in which the word “conviction” can be used and its consequences in differing statutory and common law contexts. They observed that, based on authorities including Cobiac v Liddy (1969) 119 CLR 257 at 273 per Windeyer J, Griffiths v The Queen (1977) 137 CLR 293 at 301 per Barwick CJ and R v Celep [1998] 4 VR 811 at 813 per Winneke P, in New South Wales and Victoria, the “traditional” position is that, on a trial by jury, the return of a verdict of guilty by the jury both establishes guilt and amounts to a conviction. Windeyer J’s discussion of the various meanings traditionally given to the word “conviction” is also important:
In more recent times it has been said that ‘the word “conviction” is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment … of the court’. This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury’s return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence. (footnotes omitted – emphasis added)
In our opinion, when used in Part 20, the word “conviction”, applying as it does both to summary trials and trials on indictment, simply means the finding by the tribunal of fact (magistrate, judge or jury) that the person is guilty of the relevant offence. Moreover, the definition of “relevant proceeding” in s 421 provides that such a proceeding includes “an appeal in relation to the finding of a court in relation to the offence”. That definition equates the conviction the subject of an inquiry with the ultimate finding of guilty or not guilty in relation to an offence at trial or an appeal.
It follows that a doubt or question about whether a person is guilty of the offence, as referred in s 422(1)(a), is a doubt or question about the finding of guilt. A finding of guilt after a criminal trial resolves the controversy between the prosecutor and the accused, raised by a plea of not guilty, that in law and in fact the latter is guilty of the offence charged: cf: Eastman [2014] ACTSCFC 1 at [26]. Importantly, the paragraphs succeeding s 422(1)(a) further refine the nature of the doubt or question about whether the person is guilty of the offence identified in s 422(1)(a) that can be made the subject of an inquiry.
The terms of s 422(1)(b) are important. They concern evidence that was admitted, or a material fact that was not admitted in evidence, at a trial or in an appeal. (For simplicity we will refer below only to evidence admitted or not admitted in a trial.) Critically, s 422(1)(b) requires that the doubt or question “relates to” any such evidence or material fact. The use of the words “relates to”, as with similar expressions such as “in relation to”, creates a nexus or connection between two subject-matters. Ordinarily, such connecting expressions in statutes are construed as being of wide and general import and will not be read down in the absence of some compelling reason for doing so: Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J; Kennon v Spry (2008) 238 CLR 366 at 440 [217] per Kiefel J.
However, the degree of connection that such statutory expressions require will be dependent on the particular context. As Brennan CJ, Gaudron and McHugh JJ said: “the closeness of the relationship required by the expression … must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears”: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; see too at 331 per Toohey and Gummow JJ; DC Pearce & RS Geddes: Statutory Interpretation in Australia (7th ed, 2011) at [12.7]. Accordingly, s 422(1)(b) requires that there be some association that is relevant or appropriate between the doubt or question and the particular evidence or material fact: PMT 184 CLR at 331.
In criminal proceedings, a doubt or question that relates to evidence can be both substantive and procedural. Section 422(1)(b)(ii) refers to a material fact that was not admitted into evidence. There may be various reasons or possibilities why it was not admitted, including that the judge rejected it at the trial, its existence was not disclosed by the prosecution to the convicted person (or his or her lawyers), it was discovered subsequently to the trial and any appeal or, while it was known to the convicted person or the prosecution at the time of the trial or any appeal, its relevance or import to the finding of guilt was not then appreciated.
Importantly, nothing in s 422(1) excludes or limits the circumstances in which or the reasons why the evidence was admitted or the material fact was not admitted into evidence. Those possible circumstances or reasons thus can comprehend a broad range of matters, some of which the law would classify as substantive (e.g. a material error of law made by the trial judge) or procedural (e.g. a failure by the prosecution to disclose some matter that created a possible miscarriage of justice). Moreover, the doubt or question is not just confined to the evidence or material fact referred to in s 422(1)(b) but it can be related, associated or connected with that evidence or material fact: PMT 184 CLR at 331. And, if the inquiry is ordered, it will examine, in an administrative proceeding under the Inquiries Act, as opposed to a judicial proceeding, whether, on the material before the board, the doubt or question as to the person’s conviction is confirmed or dispelled. The width of matters that can be taken into account as a doubt or question under s 422(1)(b) is qualified by the further requirement in s 422(1)(c) that it could not have been properly addressed in the trial or appeal. This is reinforced by the requirement in s 422(1)(e) that, when the order for an inquiry is sought, the doubt or question cannot be properly addressed in an appeal against the conviction. This ensures that, ordinarily, issues that could be dealt with at trial or on appeal, such as an error of law by the judge in admitting or rejecting evidence, cannot found an order for inquiry. Of course, where a basis to challenge or support the decision whether to admit or reject evidence only emerges after the trial and any appeal, such a basis can readily be seen as being capable of satisfying s 422(1)(b), (c) and (e).
Next, s 422(1)(d) further confines the basis on which an inquiry can be ordered to a doubt or question that gives rise to a significant risk that the conviction is unsafe. The word “unsafe” is not defined. It is an ordinary English word that must be applied by two classes of decision-makers under Part 20, namely a Supreme Court judge and the Executive.
We reject the Director’s argument that the words “guilty” in s 422(1)(a) and “unsafe” in s 422(1)(d) confine the jurisdiction of a decision-maker under s 422 to considering only doubts or questions involving actual guilt and what the Director submitted was the “resonant” ground of criminal appeal in s 37O(2)(a)(i) of the Supreme Court Act that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. The Director’s argument as to how s 422(1) worked ignored the language and context of Part 20 and the nature of the Executive as one of the two possible decision-makers. The legislature did not expressly, or by necessary implication, confine the nature of the doubt or question as to guilt referred to in s 422(1) to any statutory ground of appeal against conviction that a court of criminal appeal could consider.
A non-lawyer, such as the Executive, may form a view that a doubt or question as to a person’s guilt is sufficient to create a significant risk that a conviction is unsafe so as to warrant an order for an inquiry that a judge might not form. Indeed, the issue for a decision-maker under s 422(1) is whether the material before him or her, which is likely to be less than full, satisfies him or her that each of the applicable conditions in s 422(1) exists and that he or she should also order an inquiry into the doubt(s) or question(s). While s 422(1)(c) and (e) prescribe legal standards on which the Executive would have to form a view that was legally supportable, the criteria in s 422(1)(d) and (g) involve the application of broad discretionary factors.
It is difficult to see how consideration of the interests of justice under s 422(1)(g) would be necessary, if the only answer that could satisfy s 422(1)(d), as the Director’s argument necessarily proceeded, is that there is a significant risk that the conviction is “unsafe” in the sense of being unreasonable or not capable of being supportable having regard to the evidence. On the other hand, if the word “unsafe” in s 422(1)(d) included a miscarriage of justice, the decision-maker might decide under s 422(1)(g) that it would not be in the interests of justice to order an inquiry because the miscarriage may have been insubstantial.
Thus, when s 422(1)(d) refers to there being a significant risk that the conviction is unsafe because of the doubt or question, it is dealing with the real possibility that, if the inquiry finds that that doubt or question is confirmed, the conviction may not be reliable. That is why the Full Court is given the discretion to choose whether to order that, in addition to the unsafe or unreliable conviction being quashed, there should be a new trial. The terms of s 422(1) eschew the well-known nomenclature conferring jurisdiction on a court of criminal appeal, such as is found in s 37O of the Supreme Court Act. The criterion in s 422(1)(d) of a significant risk that the conviction is unsafe because of the doubt or question is distinct from those in an ordinary criminal appeal. A significant risk that the conviction is unsafe is not the same as a finding that there is a reasonable doubt as to the person’s guilt.
It has been a fundamental requirement of the criminal law for centuries that a person may not be convicted, and a conviction will not stand, if he or she has not been accorded due process. This is an historical consequence that can be traced back to the Due Process Acts of Edward III (and possibly to Magna Carta 1297 (25 Edw I c 29) in England that are still part of the statute law of the Territory. The Due Process of Law Act 1368 (42 Edw 3 c 3) provides that:
No person be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.
This is the source for modern courts of justice requiring the prosecution in criminal cases to adhere to strict procedures, as reflected in both statutes and, where not inconsistent, common law requirements such as the presumption of innocence, the right to silence and the need for guilt to be proved beyond reasonable doubt. The interests of justice include the necessity for the courts to maintain their institutional independence and integrity, including the confidence of the community that substantive miscarriages of justice will be exposed and corrected where the Court has power to do so: cf Eastman [2014] ACTSCFC 1 at [27]-[28], [40].
In Nudd v The Queen (2006) 225 ALR 161 at 162-169 [3]-[19], Gleeson CJ discussed the relationship in the criminal law between the related, but different, concepts of justice and miscarriage of justice. He described those concepts as bearing two aspects: outcome and process. His Honour’s reasons are luminous. He concentrated on the way in which the miscarriage of justice ground in the common form of criminal appeal statutes is applied in Australia and, in particular, how the “proviso” operates. Gleeson CJ explained that the miscarriage of justice ground embraces both “outcome and process as requirements of justice according to law” that are “fundamental and familiar” (225 ALR at 162 [5]). The Chief Justice said (225 ALR at 163-164 [6]-[7]):
Some irregularities ‘may’ involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur. In Mraz v R [(1955) 93 CLR 493 at 514], Fullagar J said that ‘every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed’ and that, if there is a failure in any of those respects ‘and the appellant may thereby have lost a chance which was fairly open to him of being acquitted’, then there is a miscarriage of justice. That well-known passage relates the failure of process to the loss of a chance of acquittal. Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.
The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial. (emphasis added)
Gleeson CJ went on to explain that, where the claimed miscarriage of justice arose from a defect in the process, an appellate court is primarily concerned with what happened at, or in relation to, the trial and not with an investigation of why it happened, although there will be instances where, in the interests of justice, it is necessary for the Court to have an understanding of why the asserted miscarriage occurred (225 ALR at 164 [8]-[9]).
As French CJ, Crennan, Kiefel, Bell and Keane JJ said in Lee v The Queen (2014) 308 ALR 252 at 260 [32], our system of justice reflects a balance struck between the power of the state to prosecute and the position of an accused. It is fundamental that the prosecution must prove the guilt of the accused beyond reasonable doubt: see too: Woolmington v Director of Public Prosecutions [1935] AC 462 at 480-482, where Viscount Sankey LC described this as the “golden thread” of the criminal law. In Lee 308 ALR at 263 [46], the Court held that a breach of this principle at a trial amounts to a departure in a fundamental respect from a criminal trial that our system of justice requires an accused person to have. Their Honours continued (308 ALR at 263-264 [47]-[48]):
In Wilde v R [(1988) 164 CLR 365 at 372-3], Brennan, Dawson and Toohey JJ held that the common form proviso has no application where an irregularity in the trial process has occurred ‘which is such a departure from the essential requirements of the law that it goes to the root of the proceedings’. Their Honours were referring to a criminal trial which was fundamentally flawed. Deane J [Wilde at CLR 375] said that ‘[t]he fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law’, and the proviso did not negate this principle. In a case where impropriety or unfairness permeated or affected a trial to an extent where it ceased to be a fair trial according to law, an appeal court could not dismiss an appeal on the basis that there had been no substantial miscarriage of justice. In Jago v District Court (NSW) [(1989) 168 CLR 23 at 56], his Honour referred to the circumstance where irregularity in proceedings was such that the trial ‘has been rendered unfair or has lost its character as a trial according to law’.
This statement was cited by Gaudron, Gummow and Callinan JJ in Katsuno v R [(1999) 199 CLR 40 at [35]], where their Honours said that a “failure to observe the requirements of the criminal process in a fundamental respect” means that a conviction cannot stand. [Citing Maher v The Queen (1987) 163 CLR 221 at 234; see also Katsuno at [131]-[132] per Kirby J]. In Weiss v R [(2005) 224 CLR 300 at [43]-[46]], this Court held that some miscarriages of justice occurring in the course of a criminal trial may amount to ‘such a serious breach of the presuppositions of the trial’ as to deny the application of the common form proviso. (emphasis added)
What is a “doubt” or “question”?
Heydon J discussed the expression “doubt or question” that was used in the statutory predecessor of s 422(1) in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 353 [103] and 363-367 [131]-[138]. The present statutory scheme for ordering an inquiry is significantly different from the one that his Honour discussed. Nonetheless, what he said showed that the expression is not an hendiadys. Rather, the expression broadens the scope of the inquiry to address both a doubt and a question. Heydon J said (214 CLR at 364 [134]):
Thirdly, a ‘doubt’ is one thing. A ‘question’ suggests a less intense mental state. Particular information can stimulate a question without any particular answer being pointed to. A breakdown in some aspect of the trial capable of bearing on the accuracy of the jury's conclusion that the accused was guilty in fact can stimulate a question about whether the accused was guilty in fact. Criminal appeals, under the modern procedures adopted from the Criminal Appeal Act 1907(UK), commonly succeed for reasons other than an actual demonstration of marked weakness in the Crown case or the highlighting of any strong ground for believing that the accused did not commit the crime. Rather, criminal appeals commonly succeed because some defect has arisen in the procedure of the trial. The integrity of the criminal trial and the extent to which there is professional and public confidence in its outcome depend heavily on correct procedures being followed. Failure to follow them is a common cause, not only of appeals succeeding, but also of doubts arising as to the correctness of convictions, because an error in procedure, even if it may not point decisively against guilt, may raise a “doubt” or “question” as to guilt. On the other hand, once it is demonstrated that correct procedures have been followed, “doubts” or “questions” which might otherwise arise do not arise, or if they have arisen they are removed or answered. (emphasis added)
His Honour contemplated there that matters of both outcome and process were involved. In our opinion, as used in s 422(1), the expression “doubt or question” also embraces matters of both outcome and process. In the context of the numerous preconditions for ordering an inquiry set out in s 422(1), we prefer a construction that links “doubt” to the outcome of the finding of guilt, and “question” to the process by which that finding was reached.
There are two important public interests involved in the decisions to order an inquiry under s 422(2) and, after the board has given its report, of the Full Court to make one of the orders required by s 430(2), namely the public interest in the finality of proceedings as represented by the conviction and in what Lord Hughes JSC described as the “public interest in exposing any flaw in the conviction which renders it unsafe and in quashing any unsafe conviction”: cf R (Nunn) v Chief Constable of Suffolk Police [2014] 3 WLR 77 at 92 [32], Lords Neuberger of Abbotsbury PSC, Clarke of Stone-cum-Ebony, Reed and Carnwath JJSC agreeing. The rule of law is underpinned by public confidence in the administration of justice. That confidence is reinforced by an inquiry of the kind provided in Part 20 of the Crimes Act for the reasons Heydon J gave in Eastman 214 CLR at 353 [103]. There is nothing in the provisions of Part 20 to indicate that the legislature intended to prevent an inquiry into a conviction about a doubt or question from examining both the outcome of, and process leading to, that conviction.
A doubt may arise about whether a convicted person is guilty because the person may have been innocent or the appellate or reviewing court forms the opinion that the evidence at trial, together with any new evidence or material facts (on appeal or in a review of a report under s 430(2)) has raised a reasonable doubt as to guilt that the jury also should have found. On the other hand, a question about whether the person is guilty may arise where the trial process that led to the conviction did not proceed according to law, whether or not it was attended by error, and so the conviction results from a miscarriage of justice.
The legislature distinguished between a doubt and a question in s 422(1) as grounds for ordering an inquiry so as to broaden the potential for a board to be appointed in the interests of justice, under Part 20, to inquire into whether a wrongful conviction has occurred – that is, a conviction that either is wrong factually or was not arrived at by a process at trial that the law mandates to ensure that a conviction be soundly based or was arrived at in circumstances where the convicted person lost a fair chance of acquittal: Eastman 214 CLR at 358 [114], 363 [129], 365-367 [136]-[138].
Once the board has given its report to the registrar, the Full Court must consider the report of the board “into [the] inquiry” under Pt 20 into the person’s conviction for the offence (s 430(1); and see the definition of “inquiry” in s 421) and have regard to that report for the purposes of making one of the orders that s 430(2) mandates be made. The construction of s 430(2) should not be confined in the way in which the Director argued. First, “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Secondly, Part 20 of the Crimes Act does not require the Full Court to apply the criteria applicable to the exercise of criminal appellate jurisdiction by the Court of Appeal in s 37O of the Supreme Court Act. However, those criteria play a central role in the administration of justice and the criminal law. There is a significant, but not exact, similarity between the powers of the Full Court under s 430(2) and the Court of Appeal under s 37O in deciding whether to confirm or quash a conviction. The legislature would have been mindful that the Full Court would be familiar with the ordinary powers of a court of criminal appeal when it came to exercise its powers under s 430(2). But, in enacting s 430(2), the legislature did not confine the Full Court to acting as a court of criminal appeal. Rather, the Full Court has to act in the context of the report of an administrative inquiry to inform it as to the proper exercise of its discretion to make one of the four classes of order under s 430(2).
Significantly, s 430(1) and (2) do not require the Full Court to have regard to the whole of the record of evidence at the trial. Ordinarily a court of criminal appeal would do so in cases where it considers whether the person is entitled to a verdict of not guilty (a remedy not available under s 430(2)) or whether it should apply the proviso (i.e. to determine whether no substantial miscarriage of justice occurred): see Weiss v The Queen (2005) 224 CLR 300 at 317 [43]-[45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
His Honour also found that Mr Adams QC endeavoured at all times to comply fully and properly with the prosecution’s duty of disclosure ([1691]).
Mr Eastman however, has not, been entirely blameless in relation to the difficulties that beset his first trial and the predicament in which he now finds himself. Mr Eastman repeatedly terminated the services of his lawyers during his trial and cynically sought to manipulate the trial process (see the report at [117], [250]-[251], [1375], [1765]-[1775], [1785]). His conduct and behaviour undoubtedly would have been a distraction to his lawyers, the prosecuting authorities and the trial judge and made the discharge of their respective duties and responsibilities more difficult. Had Mr Eastman not conducted himself this way, it cannot be excluded that some of the issues concerning disclosure and the problems with the evidence of Mr Barnes might have been exposed either before or at trial as Martin AJ observed and we accept ([1785]-[1789]).
As we have indicated earlier (at [195]-[200]) our concern that the AFP appears not to have thoroughly or properly investigated the new confidential material that Martin AJ dealt with in the confidential section. As noted by Martin AJ, this new material, whilst not as yet tested, cannot be ignored. It may have the potential to lift suspicion that another person or persons might have been involved in the murder of Mr Winchester to the level of a reasonable hypothesis consistent with Mr Eastman’s innocence. That material will need to be carefully considered by the Director before deciding whether to proceed to a new trial. It is sufficient to note at this stage that the apparently unsatisfactory conduct of the AFP to date in relation to its consideration of the new material is relevant in considering whether we should order a new trial.
The unsatisfactory conduct of the prosecuting authorities and their role in the matters that led to the relevant miscarriage of justice were compelling factors in verdicts of acquittal being entered in Anderson 53 A Crim R 421 and Gilham [2012] NSWCCA 131. Whilst the facts and circumstances of those matters are significantly different to the facts and circumstances here, in our view, the conduct of the prosecuting authorities in this matter is a consideration which weighs against the Court ordering a retrial. There could be no doubt that facing a new trial, more than 25 years after the alleged offence, would be particularly burdensome for Mr Eastman. This situation has undoubtedly been contributed to, if not compounded by, the conduct and attitude of the prosecuting authorities.
Against these matters, a number of factors weigh heavily in favour of the Court ordering a retrial: Taufahema 228 CLR at 256-257 [55]. First, the offence alleged here is a most serious crime. The charge of murder is one of the most serious crimes known to the law. As Spigelman CJ said in Justins v The Queen (2010) 79 NSWLR 544 at 562 [120], “the criminal involvement of one person in the death of another raises a serious issue of moral culpability that ought to be determined”. Here, on any view, the murder of Mr Winchester was a crime, as Carruthers AJ found, of the worst possible kind. It involved the cold-blooded, premeditated execution of a serving senior police officer. As Kirby J said in Taufahema 228 CLR at 176 [122] (and see at 254 [50] per Gummow, Hayne, Heydon and Crennan JJ) “[u]nlawful homicide is a serious challenge to the social order. But unlawful homicide of a police officer is a specially serious affront”.
Mr Eastman was sentenced to imprisonment for life. In the words of Carruthers AJ in passing sentence that was “the maximum period provided by law”. His Honour did not fix any non-parole period. Martin AJ made no findings about whether any recommendation for remission of Mr Eastman’s sentence under s 430(2)(b)(i) would have been appropriate had the conviction been confined. There is no evidence before us on that issue. Mr Eastman has made a number of applications for release on licence under Div 13.1.2 of Pt 13.1 of the Crimes (Sentence Administration) Act 2005 (ACT) but, so far as we are aware, the Executive has not decided to release him on licence: cf: Eastman v ACT Executive Australian Capital Territory (2013) 274 FLR 286. One might reasonably expect that if Mr Eastman is retried and convicted, a similar sentence would be imposed. The fact that Mr Eastman has already served over 19 years of imprisonment must be considered in this context. Whilst in many cases the fact that a person has already spent a significant amount of time in custody before the conviction is quashed would weigh heavily against an order for a retrial, the circumstances of this case diminish the weight that would otherwise be given to this fact: see also Spies 201 CLR at 638 [104].
In our opinion the circumstances and gravity of the offence together with the life sentence imposed are compelling factors that weigh heavily in favour of ordering a retrial.
Secondly, for the reasons above, we have accepted, the opinion of Martin AJ, a judge with extensive experience in criminal law, that there remains a strong circumstantial case against Mr Eastman (see [233] above, see too [242]-[245]). The strength of the case against Mr Eastman is a compelling consideration in favour of a retrial. In this context, the words of the Full Court of Hong Kong in Ng Yuk-Kin v The Crown (1955) 39 HKLR 49 at 60, endorsed by the Privy Council in Reid [1980] AC at 350 and by Gummow, Hayne, Heydon and Crennan JJ in Taufahema 228 CLR at 255 [51] are particularly apposite:
It is in the interest of the public, the complainant, and the [defendant] himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.
As we have previously explained, s 430(2) does not provide a power for the Full Court to order a verdict of acquittal. If we do not order a retrial, Mr Eastman’s guilt or otherwise will never be determined. Whilst Mr Eastman would of course be entitled to the presumption of innocence, in our opinion it is not in the interests of justice for the controversy as to his alleged role in the murder to be left unresolved when there remains a strong circumstantial case against him: Spies 201 CLR at 638 [103]-[104] Taufahema 228 CLR at 254 [49] and see too at [166] per Kirby J; Crampton v The Queen (2000) 206 CLR 161 at 217 [157] per Hayne J. The proper place at which a criminal accusation should normally conclude is at the trial.
We are mindful, as well, an order for a retrial does not necessarily entail that there will, in fact, be a retrial: Mallard v The Queen (2005) 224 CLR 125 at 141-142 [43] per Gummow, Hayne, Callinan and Heydon JJ; see too Stanoevski v The Queen (2001) 202 CLR 115 at 128 [51] per Gaudron, Kirby and Callinan JJ with whom Hayne J agreed, 130 [61] per McHugh J; Dyers v The Queen (2002) 210 CLR 285 at 297 [23] per Gaudron and Hayne JJ. As we have said, whether a new trial takes place will be a matter for the Director to decide in accordance with his published prosecution policy. The matters that the Director must consider in accordance with that policy, before proceeding with a retrial, include whether on the present state of the evidence there are reasonable prospects of a conviction, the availability of witnesses, their reliability and credibility, the staleness of the offence, the likely length and expense of the trial and other matters relevant to whether a further trial is in the public interest. In Thomas 14 VR at 517 [27], Maxwell P, Buchanan and Vincent JJ said that an appellate court must be careful not to usurp the role and function of the Director as the entity entrusted with the discretion to initiate and conduct criminal prosecutions. However, an appellate court, and the Full Court under s 430(2) of the Crimes Act, has an anterior and independent responsibility first to determine for itself whether it is in the interests of justice to order a retrial, leaving the further exercise of a prosecutorial decision to the Director or prosecutor. Here, the existence of a strong, albeit circumstantial, case is an important factor weighing in favour of ordering a retrial; see too the cases cited by Kirby J in Taufahema 228 CLR at 281-282 [144]-[145].
One matter that the Director will, in our view, need to consider carefully is the new confidential material that was considered by Martin AJ in the private hearings and the confidential section. As a result of orders made by Martin AJ and this Full Court, that material has not yet been revealed to the Director. The AFP will need to provide that material to the Director because of the order for a new trial that we will make. The proper investigation by the AFP and assessment by the Director of that material and any such investigation will be germane to the exercise of the Director’s discretion to proceed with a new trial.
We are not in a position to make such an assessment beyond the findings that Martin AJ was able to make for the reasons above (at [200], [207]-[209]). We reiterate, in this context, the observations that we made earlier concerning the AFP’s investigation of this material. It would appear to us, from the confidential material, that the investigation of this material to date may have been unsatisfactory and deficient. One might reasonably expect that, in the context of the exercise of his prosecutorial discretion, the Director would request or require the AFP to conduct some further and appropriate investigations into this material, particularly in light of some of the apparent deficiencies in both the original investigation into the alternative hypothesis and the investigation of the new material that has occurred thus far.
It is understandable that Mr Eastman may be sceptical that the Director will discharge his statutory functions and discretion in a proper manner in considering whether to proceed with a new trial. That scepticism no doubt flows from Mr Eastman’s perhaps reasonable perception of the earlier involvement of the predecessors of the Director in the events that led to the miscarriage of justice that arose from his first trial and the attitude that the present Director has taken both to the inquiry and these proceedings.
However, the Director is the holder of an important statutory office that requires him to observe the requirements of independence and impartiality of a prosecutor described by French CJ, Hayne, Kiefel, Bell and Keane JJ in Elias v The Queen (2013) 248 CLR 483 at 497-498 [35] as follows:
Prosecutors are subject to a duty of fairness in the exercise of their important public functions (Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 per Deane J; at 675 per Dawson J; R v Apostilides (1984) 154 CLR 563 at 575-576; Libke v The Queen (2007) 230 CLR 559 at 576-577 [34]-[35] per Kirby and Callinan JJ; at 586-587 [71]-[72] per Hayne J). In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the court has the power to relieve against the resulting abuse of its process (Barton v The Queen (1980) 147 CLR 75 at 95-96 per Gibbs A-CJ and Mason J; Jago v District Court (NSW) (1989) 168 CLR 23 at 28-30 per Mason CJ; at 47-48 per Brennan J; at 56 per Deane J; at 71 per Toohey J; Williams v Spautz (1992) 174 CLR 509 at 518-519 per Mason CJ, Dawson, Toohey and McHugh JJ; Maxwell v The Queen (1996) 184 CLR 501 at 514 per Dawson and McHugh JJ; at 535 per Gaudron and Gummow JJ). The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. (emphasis added)
If as a result of the order for a new trial, the Director does decide to present Mr Eastman for trial again, it would be open to Mr Eastman to seek a permanent stay if he was, in the all the circumstances, able to demonstrate that he could not be fairly tried, or that the further trial would be seriously and unfairly burdensome, or there was an abuse of process or the use of the court’s procedures would bring the administration of justice into disrepute or that the maintenance of immunity over the new confidential material so requires under s 130(5)(f) of the Evidence Act: Moti v The Queen 245 CLR 456; Ridgeway v The Queen (1995) 184 CLR 19; Dupas 241 CLR 237.
We have considered and given some weight to the views expressed by Martin AJ in the report that a new trial is not feasible and would be unfair both to the prosecution and to Mr Eastman. The Full Court is not, however, bound under s 430(2) to follow any recommendation by a board in this respect. Having given the matter detailed and anxious consideration, we respectfully disagree with the views of Martin AJ in relation to a retrial.
As we have said earlier, this is a wholly exceptional case. Weighing all the factors and considerations to which we have referred above, we have concluded that the interests of justice require that we order a retrial. The gravity of the offence, the life sentence imposed and the strength of the remaining circumstantial case persuade us that, despite the time that has elapsed since the offence and the time that Mr Eastman has already spent in custody, this is an appropriate case to order a new trial. The community has a vital interest in ensuring that a person against whom a strong circumstantial case of murder of a very senior police officer exists, does not escape conviction if, on a trial conducted in accordance with law, a jury is satisfied beyond reasonable doubt of his or her guilt. And this is so even if the person has already served any term of imprisonment that might be imposed on him or her following conviction on the retrial: Spies 201 CLR at 638 [103]-[104]. Whether the Director decides to present Mr Eastman for trial again will be a matter for the exercise of his prosecutorial discretion in accordance with his prosecution policy. If that occurs it will be open to Mr Eastman to make any application for a stay to the trial judge that the then factual position may warrant.
Conclusion
For these reasons, we will order that Mr Eastman’s conviction be quashed and that there be a new trial.
| I certify that the preceding three hundred and nine [309] numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares, Justice Wigney and Acting Justice Cowdroy. Associate: Date: 22 August 2014 |
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