Eastman v The Queen

[1999] HCATrans 34

IN THE HIGH COURT OF AUSTRALIA

Registry  No C5 of 1997

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

THE QUEEN

Respondent

Directions hearing

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 FEBRUARY 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR D.F. JACKSON:   If your Honour pleases, I appear with my learned friend, MR R.D. CAVANAGH, for the applicant.  (instructed by John Boersig)

MR T.A. GAME, SC:   If your Honour pleases, I appear for the respondent.  (instructed by the Director of Public Prosecutions (ACT))

HER HONOUR:   We are really only concerned to see how the application will be conducted.

MR JACKSON:   Yes.  Your Honour, we have had some discussion about it.  Could I just say these things in relation to it, and my learned friend can correct me if I am wrong.  As we understand the position, the application will be heard by the Court on 23 to, perhaps, 25 March even, at the time when the constitutional case is set down for hearing.

HER HONOUR:   Yes, that is correct.

MR JACKSON:   As to the order of events, that is a matter for the Court, no doubt, but one possibility would be that it comes after the constitutional case, of course.  The second thing is that in relation to the material before the Court on the special leave application - and could I interpolate, your Honour, by saying that this is not a case where we would ask or either side would expect that if the special leave application were successful, the Court would then go on to deal with the appeal because it is at that point that the issue arises about additional material or factual matters that might be sought to be raised by our learned friends and perhaps by us also.

So that what we had in mind was that the case would proceed, so far as the special leave application was concerned, upon the material which we have sought to put before the Court and, of course, in dealing with the question whether the case is one appropriate for special leave, the Court would, no doubt, need to consider whether, if special leave were granted, that material might be or might arguably be admissible on the hearing of the appeal.  When I say "arguably", I mean sufficiently arguably, of course.

HER HONOUR:   You envisage, however, dealing fully with the question of the admissibility of fresh evidence?

MR JACKSON:   Yes, your Honour.

HER HONOUR:   So that if you succeeded on that point and special leave were granted, you would envisage that something would thereafter happen?

MR JACKSON:   There would be a hearing one way or another in relation to the effect of that evidence and any other evidence.  So that is what we would envisage the hearing of the special leave application to deal with.  Your Honour, so far as that is concerned, there have, of course, been the ordinary forms of summaries of argument already before the Court but, no doubt, both sides would wish to put fuller arguments to the Court in relation to that.

HER HONOUR:   Yes.  So, the matter will proceed as if a full hearing on the legal issues.

MR JACKSON:   Yes.

HER HONOUR:   What happens thereafter remains to be seen?

MR JACKSON:   Yes, your Honour.  We have agreed on some dates in relation to further written submissions and they are that our submissions be delivered on or before Monday, 15 March and the respondent's on or before Friday, 19 March.

HER HONOUR:   Yes.  Now, will your submissions cover what should happen in the event that special leave is granted?

MR JACKSON:   Your Honour, may I say they will attempt to.  However, to endeavour to outguess all the possibilities that might be arrived at by members of the Court may be a Herculean task which we would not achieve but we will endeavour to, your Honour.

HER HONOUR:   Yes, thank you.

MR JACKSON:   Your Honour, perhaps I should say one further thing:  what one might well expect would be that if special leave were granted - and this is in response to what your Honour last asked me - that the manner in which the matter would be then dealt with by the Court would itself be the subject of some directions, if it were to be dealt with in the Court itself.

HER HONOUR:   Yes, but I am wondering whether you might make submissions about that in your written submissions on special - - -

MR JACKSON:   Yes.  I mean, that would be part of it.

HER HONOUR:   Yes.  Yes, Mr Game.

MR GAME:   Your Honour, we really agree with what has been put by the applicant, in substance, that, as we understand it, the special leave hearing will be the occasion upon which the question of principle is argued.  If special leave is granted, then at that point directions might be given as to the filing of affidavits or whatever course it is that is proposed to be taken from there.

Our only qualification about all of that is that we would reserve the right to put on the special leave application an argument that Dr White's evidence is not cogent on its face, your Honour.  I see that very much, in the context of the argument, a tail-end argument to the central argument of principle.  But putting that argument, we do not see the necessity to put anything else, perhaps except for some very limited portions of transcript from the trial itself.  For example, when it comes to settle the application books, it may be that we would suggest that maybe the transcript of Mr Eastman's own evidence at trial or his address to the jury would go in the application books but, bar that, we would suggest we would submit that the whole thing would be argued on the question of principle, "Is there an exception to Mickelberg?  Does Mickelberg apply?", basically, the questions that Mr Jackson sought to raise on the special leave application about the duties of counsel and so forth.  Those questions of principle severed from any evidentiary issues. 

That is how we would contemplate that the special leave application be heard.  If, at the end of that argument, special leave is to be granted, then at that point directions be given as to what we do next or what the Court does next.

HER HONOUR:   Well, you will be putting submissions in answer to anything that comes from Mr Jackson.

MR GAME:   Yes.  So, I trust that anything that anything that I have just said now does not cause any difficulty for Mr Jackson.  I assume that that is the case, but that is all I wish to say, if your Honour pleases.

MR JACKSON:   Your Honour, could I just say, first of all in relation to material:  whatever material from the trial our learned friend wishes to place before the Court - perfectly entitled to.  The second thing is that in relation to the argument about Dr White's evidence not being cogent, it would be a matter for my learned friend to make out (a) whether that is correct and (b) the relevance of it.

HER HONOUR:   Yes, thank you, Mr Jackson.  Well then, there does not seem to be any need for any formal directions in this - - -

MR GAME:   No, your Honour.  Well, just simply that the applicant will file his supplementary submissions by the 15th and we will file our submissions by 19 March.

HER HONOUR:   Yes.  Well, I will give directions accordingly.

MR GAME:   Your Honour, I take it also that the special leave application will be heard - it may be of some significance for the other people concerned with the constitutional question.  I take it, this will be heard after the constitutional - - -

HER HONOUR:   It would seem to be more convenient to hear the constitutional question first.  Would that seem - - -

MR JACKSON:   Yes, your Honour, because there are more likely to be interveners in that and more likely to be there for that rather than for this.

HER HONOUR:   Is this a case in which I should certify for the attendance of counsel or is it academic?

MR JACKSON:   Your Honour, I would appreciate it if your Honour would do so but recognising that being the nature of the matter, any ultimate order may be one that may not be made.

HER HONOUR:   I will certify for the attendance of counsel on both sides.   Thank you, gentlemen.  The Court will now adjourn.

AT 9.39 AM THE MATTER WAS CONCLUDED