Eastman v The Queen
[1998] HCATrans 301
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
For directions
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 25 AUGUST 1998, AT 12.17 PM
Copyright in the High Court of Australia
MR T.A. GAME, SC: If your Honour pleases, I appear for the respondent who is the mover on the summons. (instructed by the Director of Public Prosecutions (ACT))
MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MR R.D. CAVANAGH, for the respondent/applicant. (instructed by John Boersig)
MR GAME: Your Honour, we have put on a summons for directions under Order 72 rule 1 and we have filed an affidavit of Jennifer Woodward in support of that summons, and I read that affidavit, if your Honour pleases.
HER HONOUR: Yes. Well, you can take it as read, I think.
MR GAME: Thank you, your Honour. Now, to put it very bluntly, the purpose of the summons was to seek directions from the Court in circumstances where, in effect, a number of affidavits have been filed and we wish to bring to a head the question of the admissibility of those affidavits, having regard to the decision in Mickelberg.
HER HONOUR: The question raised by Mr Jackson goes somewhat beyond Mickelberg now, does it not?
MR GAME: Yes, your Honour. I was about to say we now have a 78B notice which has been filed and, really, we are in your Honour's hands as to what course the Court should take and the parties should take in the light of ‑ ‑ ‑
HER HONOUR: Do you have any proposal of your own?
MR GAME: Your Honour, I think my friend is - really, it comes down to whether or not the Court is of the view that there is any reasonable prospect either of Mickelberg being - - -
HER HONOUR: Well, there are a number of questions: whether it applies in this sort of case, in any event - - -
MR GAME: Yes, your Honour, but put - - -
HER HONOUR: There is also the other question, I suppose: why have the parties not gone back to the Federal Court? I only ask that because I notice in Postiglione there were two appeals to the Supreme Court under what seemed to be fairly comparable provisions.
MR GAME: Your Honour, the reason is this - could I perhaps hand you this affidavit and could I have this affidavit received with the other material?
HER HONOUR: Has Mr Jackson seen it?
MR GAME: Yes, your Honour.
MR JACKSON: Yes, no objection, your Honour.
MR GAME: It is purely a formal matter. Can I read the affidavit of Jennifer Woodward of 24 August 1998. The short point is, your Honour, that the orders were taken out in the Federal Court on 25 June 1997 so that, in effect, a successful attack on Grierson v The King would be necessary for a reopening to be successful in these circumstances. In Postiglione, of which your Honour was a member of the Court, Grierson on was reaffirmed other than in very limited circumstances which do not appear to apply in this case. So, that would seem to cut out the applicant from revisiting the Federal Court at this time.
Your Honour, we do not wish to stand in the way of my friend litigating serious questions that may arise under the Constitution, obviously enough, but we do say that as things stand Mickelberg stands in the way of this application and that there is no substance in the argument that, in effect, the appeal coming from the Federal Court - - -
HER HONOUR: You see, I wonder about that. In the old days when you had a writ of error, if Mr Jackson is right, would this verdict not have been subject to attack by a writ of error as distinct from appeal in respect of which, I think, proceedings could be brought at any time? I do not know what has happened to the writ of error.
MR GAME: Several years ago Mr Byrne successfully obtained an arrest of judgment in circumstances where - and he was unable to find any cases where this had occurred for maybe a century but he obtained an arrest of judgment in circumstances where there was reason to, in effect, doubt the validity of the decision of the District Court in the trial, but whether or not that provides the basis of an exception in this case has not been articulated. I should say this, your Honour: the affidavits which have been filed do really raise a number of different possible bases upon which the exception or the principle might be sought to be articulated. Some go to what took place at the trial; some go to what took place on the appeal and some - one consists in a medical report which is obtained subsequently and different principles may apply with respect to receipt of that material.
Could I say this, your Honour. The respondent's position on this is that, for obvious practical reasons, the respondent wishes to have the question of what is not admissible determined before the proceedings ‑ ‑ ‑
HER HONOUR: I do not see how you can. That is the problem, is it not?
What is or is not admissible may require resolution of the legal issues.
MR GAME: Your Honour, we would propose that the legal issue as to the admissibility of the material should be determined before the parties go further into the forensic exercise of - - -
HER HONOUR: And how do you propose that that be done?
MR GAME: First of all, the section 78B notices go out and it could be done by referral to a Full Court.
HER HONOUR: I do not know that there is - until there is a grant of special leave, you see, there is no proceeding. Is that not the problem? Does there not, for any issue to be resolved, have to be a grant of special leave?
MR GAME: Well, section 78B merely refers to “a cause”.
HER HONOUR: Yes, but until special leave is - 78B does not institute a proceeding in the Court.
MR GAME: But section 78B, we would submit, is surely wide enough to pick up a special leave application.
HER HONOUR: What do you want me to do about it? As I see it, there is no proceeding in the Court until special leave has been granted.
MR GAME: We would argue that an application is a cause. Now, I do not know whether that is - I have not seen any cases that address that question but “a cause” is a word of very wide import. But, your Honour, if what your Honour puts is correct then the section 78B notices - - -
HER HONOUR: - - - are premature.
MR GAME: Are premature and can be ignored for the time being. Our difficulty is a very real one, your Honour, and it is this: we say that the material that has been put on does not give the whole picture and that the whole picture may very much affect the outcome of the special leave application. For example, there is no affidavit been filed from trial counsel, Mr Terracini, and we would seek a waiver of privilege and an opportunity to find out from him what he had to say about what occurred.
HER HONOUR: I understand all that but that does not advance the issue in any relevant respect. If there is some way in which further evidence can be received and it is relevant to the disposition of an appeal, then clearly enough some way will be found to test that evidence and to receive other evidence but, surely, now is not the time.
MR GAME: Your Honour, we would submit that the appropriate time - the evidence that goes before the Court, the appropriate time that we are entitled, in effect, to put before the Court such material as we have to meet what is said to be the merits of the - - -
HER HONOUR: Well, do you wish to file it now?
MR GAME: Not this minute, your Honour, no, but we would wish to put on material, but in - - -
HER HONOUR: I do not know why you come here to me about it.
MR GAME: The reason we come here - - -
HER HONOUR: Is because you cannot think of a way yourself and you want me to think of it for you.
MR GAME: No, I am not asking you to think of a way myself to do anything but I wish to have resolved - I wish to put to the Court that there are ways in which it can be resolved, the issue - - -
HER HONOUR: Well, tell me what you propose.
MR GAME: There are two ways: one is the Court, sitting as a single Justice, could hear the special leave application and deal, as a preliminary issue, with the question of whether or not there is a reasonable argument that the material can be received; that is to say, whether or not that is a matter which would warrant a grant of special leave. That is one matter. Another way in which the matter could be resolved is that the matter could be referred to a Full Court under section 18.
HER HONOUR: What could be referred? The special leave application?
MR GAME: The question of the admissibility of the affidavits.
HER HONOUR: I do not know. I think the special leave application could be referred, could it?
MR GAME: The special leave application could be referred. It could be referred, yes.
HER HONOUR: What is the difficulty with the matter taking its normal course before a special leave Bench with that Bench deciding whether or not there will be a grant of special leave so that the preliminary issues can then be decided with it being understood that if they are resolved against Mr Jackson, there would be a refusal of special leave, and if they are not resolved against Mr Jackson, the future course of the appeal could then be considered?
MR GAME: So long as we were not cut out from then putting on our own material.
HER HONOUR: I am sure you would not be.
MR GAME: Your Honour, it is not as simple as that in a way because we contest some of the assertions which are made in the affidavits.
HER HONOUR: I understand that. That is why I have said if the preliminary questions were resolved in Mr Jackson's favour, that is to say that fresh evidence could be received relevant to, as I understand it, the single ground of appeal, the Court would then consider the future course of the proceedings so as to permit you to permit an evaluation of that evidence either by testing it against other available evidence or simply by testing it against cross-examination or remitting the matter.
MR GAME: That raises another question, your Honour.
HER HONOUR: Yes. But, anyway, that does not need to be resolved now.
MR GAME: No, that is true. I really cannot put any further suggestions as to the way in which the matter should be solved but, as I said at the outset and as we say - - -
HER HONOUR: Is your only difficulty one of safeguarding your position so as to be able to answer the evidence should it be received?
MR GAME: Yes, your Honour.
HER HONOUR: Well, I am sure that is not beyond the wit of a special leave Bench.
MR GAME: No, sorry, that is not our only difficulty.
HER HONOUR: What is your other one?
MR GAME: Our other difficulty is this, that we would wish to show reasons why the material that is put on is not persuasive and that would involve us in putting on evidence of our own.
HER HONOUR: Yes, that is what I - - -
MR GAME: On the special leave application. Not merely on the appeal but on the special leave application in circumstances where we are saying that the whole of the material is inadmissible.
HER HONOUR: Is inadmissible?
MR GAME: That is to say, your Honour, to be quite practical about it, what would happen is we would have to go and get an affidavit from Mr Adams who is now a Supreme Court judge, and - - -
HER HONOUR: But you are not saying it is inadmissible, you are saying it is unpersuasive, are you?
MR GAME: Yes, but we would say that if the material was admissible then it would not be persuasive for a variety - - -
HER HONOUR: Why can you not safeguard your position by saying that if it turns out that the evidence is admissible, for whatever reason, that leave is reserved to you to revoke special leave on the grounds that the material is not persuasive?
MR GAME: We would be happy to abide that course, your Honour, in which case we would not put on affidavit evidence at the special leave stage. Can I just say, your Honour, there is something like 7,000 pages of transcript. To make our case good, we would take the Court and the doctor to what the accused did when he cross-examined this witness or what he did when he addressed the jury.
HER HONOUR: But the first question, surely, to be determined is whether that is going to be necessary.
MR GAME: That is exactly right, your Honour. If our position is preserved whilst not going into that at all on the special leave application but simply putting on defensive submissions, as it were, but reserving our right to argue that special leave should be revoked at a later point, then we would be content with that course. But, as I said, at some point we would wish to argue, if we lost the admissibility point, that the material is not persuasive.
From a practical point of view, going down the road of putting on material now, would both be a huge burden to the Court and to everybody else concerned because it would involve putting on masses of material that might never need to be considered. Can I just say this, your Honour: the appeal itself took two weeks in the Federal Court and the trial took many, many months so we are talking about a massive amount of material. But subject to all of those defensive propositions, we could see no difficulty in not putting on any material on the special leave application and would be content for the matter to proceed in that way, your Honour.
HER HONOUR: We will see what Mr Jackson suggests.
MR JACKSON: Your Honour, may I just say one preliminary thing before moving to that and it is this: in a case which we did not refer your Honour to yesterday, R v Tucker (1915) 15 SR(NSW), a court of five judges of the Supreme Court of New South Wales made an observation, and it is no more than that, concerning the fact that fresh evidence of further evidence cases in insanity, although insanity in the particular case went to the substance of the conviction, raised somewhat different considerations from the ordinary further evidence case.
HER HONOUR: Yes. Well, it may be because it would, in days past, have gone by writ of error rather than appeal.
MR JACKSON: Yes.
HER HONOUR: If there was no ability to plead.
MR JACKSON: The particular passage, your Honour, reflects - not quite on the writ of error but on the ability to plead aspect of it, at page 509; it is the first new paragraph on that page, fifth line, “The considerations applicable to ordinary cases” et cetera, and it goes down for about ten lines.
HER HONOUR: Yes.
MR JACKSON: Your Honour, I mention that only to indicate that the contention that perhaps Mickelberg does not cover the field in respect of all
aspects of further evidence may have some support in considerations of that nature.
Your Honour, so far as the course to be adopted is concerned, the one that has emerged in the discussion between your Honour and my learned friend is one that, in our submission, is an appropriate way of dealing with the matter. We recognise the possibility that the Court might do a number of things in relation to the matter apart from dismissing the application or refusing the application for special leave. It is possible, of course, that the Court might sit a larger Bench, after having heard the application for special leave without at that point deciding it and we recognise, also, that there would be, in any event, an ability for special leave to be revoked if the material were contested.
HER HONOUR: You would not oppose a reservation of liberty to Mr Game in those terms?
MR JACKSON: Not at all, your Honour, no.
HER HONOUR: Well, if you do not object to that course why do not we let the matter take its turn in the list? As I understand the matter, it could be in the October list. Is that soon enough?
MR JACKSON: Your Honour, I suspect that this is a case where it may be that we would wish to put - it may be there would be some further material from our side. I do not know that is so at the moment. It may be that we would wish to put our submission somewhat differently from those that are before the Court in any event, but could I say that we would seek to do so within the next 14 days in either event.
HER HONOUR: Is that satisfactory?
MR GAME: Yes, your Honour.
HER HONOUR: In that case, I will direct you to make whatever change to the proposed grounds of appeal and to indicate whatever further evidence you wish to tender be filed in the Court within 14 days.
MR JACKSON: If your Honour pleases.
HER HONOUR: Otherwise, the matter will take its course. Is there any difficulty about the matter being got ready in a fairly reasonable time?
MR GAME: I have some problems in October, I think, your Honour, but ‑ ‑ ‑
HER HONOUR: There is no problem about getting the books ready or anything of that nature is what I am saying?
MR JACKSON: I should not think so, your Honour.
MR GAME: It depends what goes in the books, I suppose, yes, but ‑ ‑ ‑
HER HONOUR: Well, what I would envisage at this stage is that Mr Jackson put on whatever material he will wish to rely on and it will be open to you to argue at that stage whatever you argue by reference to his material and to indicate to the Court that it has been agreed that if special leave were granted, which you do not consent to, of course, that liberty would be reserved to you to move for its revocation on the basis of other evidence.
MR GAME: Yes, your Honour.
HER HONOUR: And that in the event that special leave were not revoked, it would be necessary for steps to be taken for other evidence to be made available.
MR GAME: Yes, your Honour. Could I just mention one other thing? In the submissions that were filed by the applicant, the case was really put on the basis of an exception to Mickelberg and Scott Fell and the argument has developed substantially since then and I just wonder whether or not my friend might particularise what the nature of the exceptions or exception are that are proposed in respect to Mickelberg.
MR JACKSON: Your Honour, I had intended to convey earlier that we would need to amend our summary of argument to accommodate the arguments which we, in fact, wish to put and I was hoping that your Honour would cover that by the 14-day - - -
HER HONOUR: Yes, the summary of argument, and the draft grounds of appeal, or are they sufficient?
MR JACKSON: There are some there, your Honour, that I think are okay but I may need to amend them slightly.
HER HONOUR: And that will disclose all that is required to Mr Game?
MR JACKSON: Your Honour, if I can just put it shortly: the point we would seek to make is that a relevant exception to Mickelberg would be the notion that Mickelberg is concerned with further evidence going to the substantive issues in the case, as distinct from something which goes to, (a) the commencement and, (b) the propriety of the whole trial, such as the mental state and ability to plead of the accused.
HER HONOUR: Yes, thank you. Very well, I think there is nothing further. I should certify for the attendance of counsel, I suppose, but I do not think there is any need to do anything further, is there?
MR JACKSON: No, your Honour.
HER HONOUR: The matter can be restored to the list for further directions on seven days notice, should that prove necessary. Very well, the Court will now adjourn.
AT 12.41 PM THE MATTER WAS CONCLUDED
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