GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
DAVID HAROLD EASTMAN APPLICANT
AND
THE QUEEN RESPONDENT
Eastman v The Queen [2000] HCA 29 25 May 2000 C5/1997
ORDER
Special leave to appeal granted.
Appeal dismissed.
On appeal from the Federal Court of Australia
Representation:
D F Jackson QC with R D Cavanagh and G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 25 March 1999
D F Jackson QC with G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 1 February 2000
T A Game SC with S J Gageler for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 25 March 1999
T A Game SC with R C Refshauge for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 1 February 2000
2.
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 25 March 1999
D Graham QC, Solicitor-General for the State of Victoria with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia) at the hearing on 25 March 1999
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Eastman v The Queen
Constitutional Law (Cth) – Appellate jurisdiction of High Court – Appeal from a federal court – Whether High Court has power to receive new evidence in an appeal from a federal court – Whether power to receive new evidence is different in appeals from federal and state courts.
Constitutional Law (Cth) – Interpretation – Relevance of historical background to Constitution.
Appeals – New evidence – Whether admissible on appeal to High Court.
Criminal Law and Practice – Fitness to plead – Issue not raised at trial – Whether material before appeal court suggested issue of fitness to plead at trial – Whether appeal court under a duty to investigate whether an accused was fit to plead at trial – Whether fundamental failure of trial process.
Words and phrases – "appellate jurisdiction" – "appeal" – "fresh evidence" – "fitness to plead".
GLEESON CJ. The applicant, following a trial in the Supreme Court of the Australian Capital Territory, was convicted of the murder of Colin Stanley Winchester. He was sentenced to imprisonment for life. An appeal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Eastman v The Queen [2000] HCA 29
Case
[2000] HCA 29
Decision Date
CaseChat Overview and Summary
David Harold Eastman, the applicant, sought special leave to appeal to the High Court of Australia from a decision of the Full Court of the Federal Court of Australia. The Full Court had dismissed his appeal against a conviction for murder. The applicant had been convicted in the Supreme Court of the Australian Capital Territory of the murder of Assistant Commissioner Winchester of the Australian Federal Police. The trial itself was lengthy and marked by the applicant's disruptive behaviour, including periods where he represented himself.
The primary legal issue before the High Court concerned the admissibility of new evidence, specifically ten affidavits, including psychiatric opinions on the applicant's fitness to plead. This evidence had not been presented to the Full Court. The respondent objected to its admission, relying on the authority of *Mickelberg v The Queen*, which held that the High Court generally has no power to receive new evidence on an appeal from a federal court. The applicant contended that *Mickelberg* was wrongly decided or should not be followed, and that the new evidence was crucial to establishing a fundamental failure of the trial process due to his alleged unfitness to plead, an issue not raised at trial.
A majority of the High Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) upheld the respondent's objection, ruling that the new evidence was inadmissible on appeal. The Court reasoned that the power to receive new evidence on appeal from a federal court is more restricted than in appeals from state courts, and that *Mickelberg* correctly reflected this distinction. Consequently, the applicant's attempt to rely on this new evidence failed.
Special leave to appeal was granted by a majority of the Court. However, the appeal itself was dismissed.
Orders
Orders of the court
1.
Special leave to appeal granted.
2.
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
None of the above grounds had been argued in the Full Court, and no question as to the applicant's fitness to plead was raised before the trial judge. It will be necessary to make further reference, in due course, to the conduct of the trial and the appeal. For the present, it suffices to say that the grounds of appeal argued in the Full Court were not pursued in this Court, and the grounds sought to be argued in this Court represent a substantial departure from the way in which the trial and the appeal were conducted on behalf of the applicant.The new evidence At the commencement of the hearing of the application, senior counsel for the applicant sought to read 10 affidavits. Two of the affidavits were sworn by a psychiatrist, Dr White, who expressed opinions concerning the applicant's mental condition, and his fitness to plead. The remaining affidavits were sworn by a number of legal practitioners, and contained evidence as to the conduct of the applicant in relation to the preparation and conduct of his trial, said to bear upon his fitness to plead. None of this evidence had been before the Full Court. It was objected to by the respondent. The primary ground of objection was that, upon the authority of the decision of this Court in Mickelberg v The Queen[3], the Court had no power to receive the further evidence on an appeal, and that it would be futile to grant special leave to appeal on the basis of evidence which would not be admissible on an appeal. The arguments involved in this tender of further evidence, and the respondent's objection, raised a constitutional issue, and a number of AttorneysGeneral intervened. Senior counsel for the applicant contended that Mickelberg did not stand in the way of his attempt to lead the evidence and that, even if it did, it should be reconsidered, and not followed.[3](1989) 167 CLR 259. There were other objections to the evidence. It was observed that the opinions of Dr White were largely based upon assumptions of fact concerning the applicant which were not shown to be true, and that his evidence included a substantial amount of inadmissible hearsay. It was also foreshadowed that, if the new evidence were admitted, counsel would wish to cross-examine some of the deponents, including Dr White, and would challenge Dr White's opinions. It was decided that the appropriate course was to hear full argument from the parties and interveners upon what might be described as the Mickelberg point. If the evidence were to be rejected on that basis, then it would be unnecessary to deal with other grounds of objection, and no occasion to cross-examine Dr White or any other witness would arise. In that event, the grounds of appeal sought to be raised by the applicant would be considered in the light of the material that was before the Full Court. It is the opinion of a majority of the Court, consisting of Gaudron J, McHugh J, Gummow J, Hayne J and myself, that the respondent's primary objection should be upheld, and that the further evidence upon which the applicant seeks to rely must be rejected. That being so, the evidence will not be received, and it is unnecessary to consider further questions as to the admissibility or cogency of the evidence, or to permit cross-examination.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON J
HUGH J
(dissent)
The applicant's argument fails at both levels.Conclusion I would refuse special leave to appeal. However, there is a majority of the Court in favour of granting special leave. In those circumstances, I consider that the appeal should be dismissed. David Harold Eastman ("the applicant") seeks special leave to appeal from a decision and order of the Full Court of the Federal Court of Australia dismissing an appeal against his conviction for murder[21]. The applicant was convicted in the Supreme Court of the Australian Capital Territory of the murder, on 10 January 1989, of Assistant Commissioner Winchester of the Australian Federal Police.[21]Eastman v The Queen (1997) 76 FCR 9.History of the proceedings The applicant's trial, which was presided over by Carruthers AJ, commenced on 16 May 1995 and lasted for five and a half months, concluding with his conviction on 3 November 1995. The trial was marked by various outbursts from the applicant and the frequent withdrawal of instructions from his legal representatives. From time to time, he represented himself either until he re-instructed those whose services he had dispensed with or until he engaged new legal representation[22]. He was unrepresented from 10 October until the conclusion of his trial on 3 November 1995.[22]Eastman v The Queen (1997) 76 FCR 9 at 32-34 per von Doussa, O'Loughlin and Cooper JJ. It will later be necessary to give a more detailed account of the behaviour of the applicant at his trial. For the moment, however, it is sufficient to note that neither the applicant, his various legal representatives, nor prosecuting counsel raised any question during the trial as to his fitness to plead. Nor did the trial judge who, in his remarks on sentence, indicated that he regarded the applicant's conduct as an attempt "to avoid the consequences of the damning nature of the Crown evidence by adopting a process of manipulating the trial process and attempting to frustrate its progression in any conventional manner." On appeal to the Federal Court, an argument was put that there had been a miscarriage of justice because of "[t]he inability of the [applicant] to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution". In essence, the argument related to police surveillance, including electronic surveillance, to which the applicant had been subjected for some years and which, according to the argument, resulted in conduct from which an adverse inference might be drawn but which could not properly be explained to the jury. It will be necessary to refer again to this aspect of the appeal to the Federal Court. For present purposes, however, it is sufficient to note that, although there was an issue as to the ability of the applicant to prepare his defence and to instruct counsel, no specific issue was raised as to his fitness to plead. In fact, counsel expressly rejected any suggestion of mental illness which might bear on that question[23].[23]Eastman v The Queen (1997) 76 FCR 9 at 48-49.