Eastman v Director of Public Prosecutions [No 3]
[2014] ACTSCFC 3
•22 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Eastman v Director of Public Prosecutions [No 3] |
Citation: | [2014] ACTSCFC 3 |
Hearing Date: | 22 August 2014 |
DecisionDate: | 22 August 2014 |
Before: | Rares J, Wigney J, Cowdroy AJ |
Decision: | See [11] |
Category: | Granted bail on order for retrial |
Catchwords: | CRIMINAL LAW – application for bail under Bail Act 1992 (ACT) after conviction quashed and retrial ordered – presumption against bail in s 9(1) – special or exceptional circumstances exist favouring grant of bail under s 9C of Bail Act – where no opposition by Crown to bail being granted – where accused had history of answering bail – test of existence of grounds sufficient to justify a departure in the particular circumstances from the ordinary rule that bail not be granted |
Cases Cited: | Eastman v Director of Public Prosecutions [2014] ACTSCFC 2 referred to Jess v Scott (1986) 12 FCR 187 applied |
Parties: | David Harold Eastman Director of Public Prosecutions |
Representation: | Counsel Mr S Gill Mr K Lee |
| Solicitors Legal Aid ACT ACT Office of the Director of Public Prosecutions | |
File Number: | SC 222 of 2014 |
THE COURT:
Mr Eastman applied for bail, following the delivery earlier today of our reasons for judgment (Eastman v Director of Public Prosecutions [2014] ACTSCFC 2). The Director of Public Prosecutions has not opposed the grant of bail subject to a number of conditions that he has proposed. Nonetheless, the Court must still be satisfied that the provisions of the Bail Act 1992 (ACT) have been met.
A person accused of murder, as Mr Eastman currently is, may not be granted bail unless the Court is satisfied that special or exceptional circumstances exist favouring its grant over and in addition to those in s 22 of the Act (s 9C(1)(a), (2)). The standard of proof required for the grant of bail is the balance of probabilities (s 55). No argument was directed to us on the construction of s 9C(2) or the test to be applied.
Consideration
In In the matter of an Application for Bail by Luigi Costa [2013] ACTSC 15 at [11], Refshauge J suggested that s 9C(2) required an applicant to establish that there had to be some unusual or uncommon circumstances that justified the granting of bail. His Honour noted that the ACT Law Reform Commission had suggested, in its 2001 Report on the Laws Relating to Bail at [8], that prominent cases like that of Mr Eastman had been the genesis of s 9C(2). However, Refshauge J added that it was not at all clear on what evidence the Commission had identified that the community had a “feeling” that the then bail laws were not protecting the community adequately from violence.
Whether there are special or exceptional circumstances for the purposes of ss 9C(2) and 9G involves a question of whether there are grounds sufficient to justify a departure in the particular circumstances from the ordinary rule that bail not be granted: see Jess v Scott (1986) 12 FCR 187 at 195-196 per Lockhart, Sheppard and Burchett JJ; QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 per Tamberlin, Kiefel and Weinberg JJ at [6]-[7].
The Director made no suggestion in respect of Mr Eastman today of any present need for protection of the community from violence.
We are satisfied that the conditions proposed to obtain for the next three weeks by agreement between the parties are appropriate to satisfy the requirements of s 22 of the Act for an immediate grant of bail. That is because it is likely that Mr Eastman will appear in Court in answer to his bail. In the past, while he was on bail, prior to his incarceration on 29 June 1995, he had always answered his bail. There is no material before us to suggest that there is a likelihood that if released on bail he would commit any offence, harass or endanger the safety or welfare of anyone, interfere with evidence, intimidate a witness or otherwise obstruct the course of justice in relation to himself or anyone.
Mr Eastman is 68 years of age, and has been in gaol for over 19 years following a conviction which we set aside today by reason of a substantial miscarriage of justice in his trial. It is uncertain whether the Director will proceed with a retrial. The consideration of that matter will be complicated. The Court will not be able to hold a hearing on a new trial until at least February 2015. That would mean that Mr Eastman would remain in gaol for another five months in circumstances where he has already served a very long term of imprisonment.
In our opinion, the circumstances in which we have quashed Mr Eastman’s conviction and ordered a retrial are of a special or exceptional kind. The inevitable delay before he could be tried again if the Director chooses to proceed is significant. It is also significant that the Director has not opposed bail being granted and, indeed, has formulated some strict bail conditions that he contended should be imposed. The Director’s view is that of the public official responsible, on this occasion, for raising any evidence or material that is relevant to the Court’s consideration as to the safety of the community. He has put nothing before us to suggest that any risk to the community or any person would be posed if Mr Eastman were released on bail, subject to the strict bail conditions of the kind the Director proposed.
The Chief Justice will be able to consider the appropriate conditions and any narrowing of the list of persons whom Mr Eastman must not approach when the matter next comes before the Court.
We are satisfied that, having regard to the matters to which we have referred, special or exceptional circumstances exist today that justify the grant of bail to Mr Eastman.
Conclusion
For these reasons, we will order that Mr Eastman be admitted to bail on conditions that, up to and including 11 September 2014, he:
(a)submit to the supervision of Director-General of Justice and Community Services;
(b)obey all reasonable directions of the person delegated to supervise him;
(c)reside as directed or approved by the Director-General or her delegate;
(d)notify the Australian Federal Police, ACT Policing, 48 hours in advance of any intended travel overseas or interstate, including to the Territory if he is residing elsewhere, unless that travel has been approved by the Director-General or her delegate;
(e)not contact directly, approach, assault, threaten, intimidate or harass the people listed in annexure A to the orders;
(f)not contact directly or indirectly, approach, assault, threaten, intimidate or harass any member of the family of the late Colin Winchester.
The matter will stand over for mention before the Chief Justice on 11 September 2014.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares, Justice Wigney and Acting Justice Cowdroy. Associate: Date: 9 October 2014 |
5
5
0