Eastman v The Queen
[1995] FCA 1207
•7 Jul 1995
CATCHWORDS
PRACTICE AND PROCEDURE - ACT Supreme Court - applications for
leave to appeal - criminal proceedings - trial in progress -
interlocutory orders - refusal of permanent stay - refusal to disqualify for bias - revocation of bail - fragmentation of
criminal process - no exceptional circumstances.
CRIMINAL LAW - ACT Supreme Court - murder trial in· progress -
interlocutory orders of trial judge - refusal of permanent stay - refusal to disqualify for bias - revocation of bail -
application for leave to appeal to Federal Court.
Walton v Gardiner (1993) 177 CLR 378
Sergi v Director of Public Prosecutions, unreported, New South
Wales Court of Appeal, 10 September 1991
B v Iorlano (1983) 151 CLR 678
Jarrett v Seymour (1993) 46 FLR 557
Elliot v Seymour (1993) 119 ALR 1
Re Rozenes; Ex parte Burd (1994) 68 ALJR 372
Yates v Wilson (1989) 168 CLR 338
Orr v Holmes (1948) 76 CLR 632
Greater Wollongong Corporation v Cowan (1955) 93 CLR 435
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Barton v Walker (1979) '2 NSWLR 740 ·
Gas & Fuel Corporation Superannuation Fund v Saunders ( 1994)
123 ALR 323
Federal Court of Australia Act 1976 (Cth) s. 27
Supreme Court Act 1933 {ACT), s. 4A
Bail Act 1992 (ACT), s . 22
No . ACT G36 of 1995
No. ACT G37 of 1995 No. ACT G40 of 1995
DAVID HAROLD EASTMAN v THE QUEEN
| Applicant | Respondent ~: |
BLACK CJ, SHEPPARD AND BEAUMONT JJ
7 JULY 1995
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||||
| |||||
| AUSTRALIAN CAPITAL TERRITORY |
| ||||
| DISTRICT REGISTRY | ) ) | ||||
| GENERAL DIVISION | ) |
APPLICATION FOR LEAVE TO APPEAL FROM THE
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| BETWEEN: | DAVID HAROLD EASTMAN |
Applicant
| AND: | THE QUEEN |
Respondent
| CORAM: | BLACK C.J., SHEPPARD AND BEAUMONT JJ. |
| DATE: | 7 JULY 1995 |
| PLACE : | MELBOURNE (APPLICATIONS HEARD IN CANBERRA) |
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. Leave to appeal in each of matters ACT G 37, 38 and 40 of
1995 is refused.
2. The republication of these orders and the reasons for
judgment except to the parties and their legal advisers
is prohibited until further order of the Court or of a
judge.
| Note : | Settlement and entry of orders is dealt with in |
| Order 36 of the Federal Court Rules. |
-:.:.
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||||
| |||||
| AUSTRALIAN CAPITAL TERRITORY |
| ||||
| DISTRICT REGISTRY | ) ) | ||||
| GENERAL DIVISION | ) |
APPLICATION FOR LEAVE TO APPEAL FROM THE
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| BETWEEN: | DAVID HAROLD EASTMAN |
Applicant
| AND: | THE | QUEEN |
Respondent
| CORAM: | BLACK C.J., SHEPPARD AND BEAUMONT JJ. |
| DATE: | 7 JULY 1995 |
| PLACE: | MELBOURNE (APPLICATIONS HEARD IN CANBERRA) |
REASONS FOR JUDGMENT
| THE COURT: | These three applications for leave to appeal arise |
in the following circumstances.
The applicant, David Harold Eastman, is charged with the murder of Colin Stanley Winchester on 10 January 1989 . The
indictment, dated 29 March 1993, was filed in the Supreme
Court of the Australian Capital Territory at about that time,
the applicant having been committed for trial by the Coroner
on 24 December 1992 after a coronial inquest held from May
1989 to December 1991, and reopened in November 1992.
In May 1994, prior to the commencement of the trial, the applicant moved the Supreme Court for an order that the
2
proceedings be permanently stayed. On 11 July 1994, Jenkinson
J. , sitting as a Judge of the Supreme Court, refused the
motion.
The trial of the applicant was fixed to commence on ! · May
1995 before Carruthers A.J. On 1 May, the applicant's
solicitors filed a notice of motion, returnable before the
Supreme Court on 2 May, again seeking a . permanent stay.
On 2 May 1995, the trial commenced and is currently part
| heard. | On 2 May, the applicant requested that the trial Judge |
disqualify himself. His Honour declined the request.
On 16 May 1995, Carruthers A. J. refused the application
for a permanent stay filed on 1 May, and on 1 June his Honour
gave reasons for the refusal.
| The applicant now seeks, in matter ACT G 36/95, leave to appeal from the order made on 16 May refusing the stay. | This |
| application is dated 19 June 1995. |
In matter ACT G 37/95, the applicant seeks to appeal against what is said to be the judgment given on 16 May. The basis of this application, also rlated 19 June, is said to be
that the trial Judge exhibited bias.
The third application before this Court in matter ACT G 40/95, is an application for leave to appeal from the order
3
made by Carruthers A.J. on 29 June whereby the applicant's
bail was not renewed.
| The applications were argued | at length over a period |
| extending throughout 3 and 4 July. | On 3 July the Court sat |
| until 6 p . m. | The matter was concluded at 5.40 p.m. on 4 July |
when the Court reserved its decision. The applicant was
unrepresented but had a comprehensive grasp of the points
which he wished to make. He was very articulate and presented
his case clearly.
Ordinarily, the Court would publish more detailed reasons than these, dealing in detail with each of the arguments presented to it . There are reasons, however, why that is not
possible in this case. The first of these is time. The
applications have been made by the applicant during the course
of a criminal trial. The trial has proceeded, so we were
| informed, for the past seven weeks. | The Crown has called some |
60 of the 200 or so witnesses it proposes to call. On the
present rate of progress it is anticipated that the Crown case will occupy a further eight weeks. The due administration of
justice requires a decision from this Court on the matters that were argued as soon as it is reasonably possible for it
to be given.
There is a further reason why the reasons are necessarily brief. Many of the matters which are relied upon touch on
sensitive aspects of the trial and the possibility of any
4
misconception that we have a view about these matters must be minimised. We have no more than an outline of the Crown case.
We have heard no evidence, and, in any event, it would be
quite irrelevant and inappropriate for - us to express any view
of our own about any aspect of the evidence. Nevertheless,
misunderstandings occur and it is desirable that the chances
of that happening be reduced so far as that is possible.
| Numerous points were relied upon by the applicant. | We do |
not propose to address each one. The critical points may be
referred to as the flawed inquest point, the fresh evidence point, the bias point and the bail point. It was substantially upon the flawed inquest point that the applicant
relied in his application that the trial be permanently
stayed. The submission with which his Honour dealt was made for the applicant by senior counsel then appearing for him.
The submission is succinctly put in written submissions which
were given to his Honour and which have been made available to
| us . | The applicant relied upon those submissions. |
In his affidavit in support of the application for a stay filed on 1 May, the applicant's solicitor contended that the
continuation of the proceedings would be an abuse of process
for the following reasons:
| "(i) | Because of the flawed Inquest proceedings and |
| the inadequate police investigations on which those proceedings were based the accused | |
| cannot receive a fair trial. To require the accused to stand trial in these circumstances | |
| would constitute an abuse of process; |
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(ii) The Crown case is a circumstantial one and it
is incumbent on the Crown to exclude beyond
r easonable doubt any reasonable hypotheses
cons is tent with the accused's innocence.
Evidence at the Inquest raised a number of
such hypotheses , yet the Crown case as
outlined , and its list of proposed witnesses,
| indicate its intention not to lead evidence . of such hypotheses in the trial. To deny the |
accused the benefit of such hypotheses is
oppressive and an abuse of process ;
(iii) The Crown case as outlined is so inherently
weak that if a guilty verdict were to be
returned at trial it would be quashed on the appeal as being unsafe and unsatisfactory and
no new trial would be ordered . Thus, to
require the accused to stand trial on this
| prosecution case would be oppressive and an abuse of process; | |||||||
| (iv) |
| ||||||
| |||||||
|
trial .
(v) The accused has been subjecte d to a r egime of
harassment by Australian Federal Police
officers which has interfered with his
a bility to properly instruct his legal
representatives in his defence to the extent
that to require him to stand trial on the
indictment would constitute an abuse of
process ;
(vi) To allow the Crown to lead _what is termed the 'Webb Evidence' given to the Inquest on 18 November 1992 would be oppressive and an
abus e of process. The Crown case against the accused fails in the absence of the said
evidence ."
| Having referred to the authorities in this area, in particular, the judgment 'of Jen).cinson J. and the "balancing | .-. | I ' |
| ;: |
exercise" explained by the majority of the High Court (:M:ason
CJ., Deane and Dawson JJ.) in Walton v Gardiner (1993) 177 CLR
378 (at 396), the primary Judge proceeded to analyse the
circumstances of the case, and considered each of the grounds
6
(i) to (vi), above, contended for on behalf of the applicant,
and in the light of the authorities, concluded that no basis
for the grant of a permanent stay had been made out .
In our opinion, subject to the question of the tender of fresh evidence, to whi ch we will return, no case for leave has
been made out.
The principles to be applied in this area are well settled . In Walton, Mason CJ. , Deane and Dawson JJ. agreed
(at 392) with the approach taken by the New South Wales Court
of Appeal that it had power to make an order staying
proceedings if satisfied that their continuation would be so
unfairly and unjustifiably oppressive as to constitute an
abuse of process; and that it would only be so satisfied in an exceptional or extreme case. A similar approach has been
taken by that Court, in a criminal context, in Ser gi v
| Director | of | Public | Prosecutions, | 10 | September | 1991, |
| unreported. |
Moreover, so far as intervention at the appellate level
by this Court is concerned, there are_ powerful discretionary
reasons why this Court should not interfere (see B v Iorlano
| (1983) 151 CLR 678 at 680; Jar.rett v Seymour ( 1993) 46i FCR | I |
| 557; | Elliott v Seymour (1993) 119 ALR 1). | As Dawson J. !said |
in Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373:
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"This Court has repeat~dly indicated that the fragmentation of a criminal trial by proceedings to
contest the rulings of a trial judge, by way of
either leave to appeal or prerogative relief, is
highly undesirable and will only be allowed in
exceptional c ircumstances ."
In Yates v Wilson ( 1989) 168 CLR 338, Mason CJ, Toohey and Gaudron JJ, i n refus ing an application for special leave
to appeal against a decision of this Court not to interfere
with a Magistrate's decision to commit a person for trial,
stressed the undesirablity of fragmenting the criminal
process . Their Honours said (at 339):
"The undesirability of fragmenting the criminal
process is so powerful a consideration that it requires no elaboration by us. It is a factor which
should inhibit the Federal Court from exercising
jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as we ll as inhibit
this court from granting a special leave to appeal."
Where the fragmentation of a criminal trial is involved, the usual tests applied in civil cases to determine whether
leave to appeal should be granted from an interlocutory order
yield to the further and very powerful consideration that the
fragme ntation of a criminal tria l by appellate proceedings is
highly undesirable, so that leave will be granted only in exceptional circumstances. Other factors that point to this
conclusion include what Kirby P. described in Sergi v Director
| of Public Prosecutions as: "the ·~ large provisions to chal~enge | :: |
a conviction on appeal if, at the end of a trial, the ac~used
is convicted and still compla ins about an interlocutory
ruling . " The circumstance, if it were present , that an
applicant might succeed upon appeal on grounds sought to be
8
raised by way of appeal during the course of a trial, and will
have suffered the e xpense and strain of a criminal trial in
the meantime, is not, for these purposes, an exceptional
circumstance: Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at
373-374, per Dawson J.
The principles to be applied by the trial Judge are also well established.
In Walton, Mason CJ . , Deane and Dawson JJ. said (at 395-
6 ) :
" the question whether criminal proceedings
should be permanently stayed on abuse of process grounds falls to be determined by a weighing process
involving a subjective balancing of a variety of
factors and considerations. Among those factors and
considerations are the requirements of fairness to the accused, the legitimate public interest in the
disposition of charges of serious offences and in
the conviction of those guilty of crime , and the need to maintain public confidence in the administration of j ustice. "
In our view, it has not been shown that the primary Judge failed to identify correctly these principles or that
exceptional circumstances exist such as would warrant the
grant of leave to appeal .
The fresh evidence point w~s based main ly on the r 1cent availability to the applicant of transcripts of conversaiions
overheard by police officers as a result of the installation
of listening devices in or close to the applicant's flat.
Some of these conversations were with his solicitors. The
applicant complained that the subsequent transcription of the
conversations, which were conversations between himself and his legal adviser, amounted to a gross breach of legal professional privilege which had been permitted by the
Australian Federal Police. We are prepared to assume that
this may have been the case. Furthermore, we are not prepared
to accept at face value the bland assurance of counsel for the
Crown that the installation of the listening devices without a
warrant in the vicinity of the accused's home was lawful . We
are unable to determine whether the installation was lawful or
unlawful because we have heard no evidence on the point . It
is unnecessary, for the purposes of reaching a conclusion on
the matters rel ied upon by the applicant, for us to do so.
The principles upon which fresh evidence may be received are well established. They have been propounded by the High
Court in Orr v Holmes (1948) 76 CLR 632, Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 and Commonwealth Bank of
Australia v Quade (1991) 178 CLR 134. One of those principles
is that a person seeking to rely on fresh evide nce in an
appeal must establish, not only that the evidence carne into
his possession after the trial of the matter but that, if the
evidence had been available at the time of the trial, there
would have been at least a real possibility that it would have
led to a result opposite to that reached at the trial . :Here
'
'
the trial is not the present trial which is continuing b~fore
his Honour nor the inquest. It is the hearing before his
| Honour. | The question we must ask ourselves is whether, if his |
Honour had had the transcripts available to him at the time he
10.
| made | his | decision, | there | would | have | been | a | distinct |
possibility of his reaching a different conclusion.
In our opinion, having regard particularly to the lapse of time between the inquest and the trial, it is most unlikely
that h i s Honour's conclusion would have been any different
from what it was.
Apart from these matters, there is a question whether,
although the material upon which the applicant relies in fact
came into his possession very recently, it was not available
to him much earlier and indeed before the application made to
the trial judge for the permanent stay . The fact that the
conversations in question had been overheard by the police was
well-known. It was apparently their content which was not
known . It seems that if a reque~t for the transcript had been made by the applicant earlier, it would have been complied
with. That was all at a time when the applicant was represented by competent senior counsel . There is thus a question whether the applicant exercised due diligence to
obtain t he material requ i red for his application to his Honour
for a s tay.
In our opinion, this is not a case in which the discretion to receive further evidence under s.27 of the
Federal Court of Austral i a Act 1976 should be exercised.
11.
Accordingly, leave to appeal in matter number ACT G 36 of 1995 is refused .
| We turn to the bias point. | An initial difficulty |
confronting the applicant is that no formal order was made by the trial Judge on either occasion when his Honour declined to
disqualify himself, being 2 May and 29 June respectively, from
which an appeal could be brought.
Moreover, it is by no means obvious what order of any ·utility could now be made he r e by an appellate court, even if
it were persuaded to interve ne at this juncture (see Barton v
Walker (1979) 2 NSWLR 740; cf. Gas & Fuel Corporation
Superannuation Fund v Saunde r s {1994) 123 ALR 323).
But, in any event, we are not persuaded that any ground for disqualification has been made out. The applicant relied
upon a number of statements in the transcript by his Honour which he said gave him a reasonable apprehension that his Honour was biased against him . We have examined each of these
instances and have reached the conclusion that the submission
is not justified.
1:
;:
| A few things need to be said about this matter. | Firs.tly, |
a trial of the length of this one, particularly bearing in
mind its complexity, naturally imposes a substantial strain on
all those engaged in it. That particularly applies to an
12.
accused person who, for much of the trial, has chosen to
r epresent himself. One of the difficulties about taking this
course is that an accused person in such a position is
inclined to lose his own objectivity and balance which
counsel, removed as he or she is from personal involvement in
the case, is usually able to avoid. A trial such as this
imposes strains of a different kind on the Crown and those who
represent it , on police officers and others who give evidence
and upon jurors. A very substantial burden is cast upon the
trial judge whose duty it is to see that the trial remains
fair throughout . It is only natural that, at times, patience
will be tried, tempers may tend to become a little short and
misunderstandings may occur. From time to time remarks may be
made which may be regarded on reflection as incautious or
unwise .
It is plain on the face of the transcript that his Honour has had a concern on some occasions that the applicant has been deliberately endeavouring t o say things, or to ac t in a
manner, calculated to have an inf luence on the jury in his
favour . His Honour has rebuked him from time to time for
making what may be termed irrelevant and unhelpful comments.
Particularly in respect of one:, _ occasion which occurre<;:l on '
j!
| 29 June last, the applicant is prepared to concede | that;! his |
own behaviour left something to be desired . He claims however
to have bee n provoked into this behaviour by a remark made by
his Honour. The remark was made in the context of a
13.
consideration of whether or not the applicant should be
allowed to remain on bail. In the submission of the applicant
the remark made by his Honour, which we shall not repeat, was
unsympathetic and sarcastic. We do not wish to say any more
about it other than that it may have · been better expressed.
It was the applicant's submission that his own behaviour was
brought about by resentment at what his Honour had said.
On another occasion, when the appellant was represented
by counsel, his counsel was cross-examining a key witness in
the trial. We do not go to the significance of this evidence
except to say that, upon the basis of the outline of the Crown case which we were given by counsel for the Crown, the witness
was certainly a very important one. His Honour apparently
thought the cross-examination had proceeded for too long and
made another remark which, in our view, was unfortunate.
Again we do not go to the particular discussion which ensued between his Honour and counsel but, understandable though it
may have been, it may have been better if his Honour had
endeavoured to bring the cross-examination to an end in a less
forthright way.
| Although we have said what{ we have, it would be going much too far to take the view that these remarks made by!: his | L |
Honour may be reasonably perceived to have reflected animosity
towards the applicant so as to justify a finding of
apprehended bias on his part .
14.
There was another aspect of the bias argument which was
| unusual. | Our attention was drawn to the fact that his Honour |
was appointed pursuant to s.4A of the Supreme Court Act 1933
(A.C.T.) as an additional judge of the Court. Appointments
may not be made for periods longer than 12 months although, as we understand the statute, it would be quite permissible for
the executive to reappoint a judge who has been appointed to act for an additional period. The point relied upon by the applicant is that his Honour's appointment concludes in
December next . He says, therefore, that the trial has to
finish before then. Otherwise his Honour cannot sit. Subject to his Honour's reappointment in that event, that would not be
so. The applicant has complained that from time to time, his
Honour has made remarks which suggest that he is anxious to
maintain the momentum of the trial . The applicant, so he says, has understood thi s to mean that his Honour is intent on
finishing the trial at all costs as soon as possible so as to
meet this deadline.
We have no hesitation in saying that the applicant is under a misapprehension about this matter. No judge presiding
over any trial, whether civil or criminal, these days does so
without being conscious of the ~need to keep proceedingf as
;
brief as possible so long as doing so is consistent wit~ the
due administration of justice. The applicant ought not,
simply because his Honour has indicated his wish that the
momentum of the trial be maintained, take from that some
15.
indication that his Honour does not propose to carry out his duty of ensuring that there is a fair trial. It would, of course, be a counter-productive exercise for his Honour to
engage in such a process. His Honour would be well aware of
this. If he were to do so , the trial would almost ' certainly
miscarry with the consequence that the time and expense incurred in the trial would have been wasted . No one would be
more consc ious of this than his Honour who has had a very
substantial experience in criminal trials. The likelihood is
that, if the trial were to run longer than December, the
Government of the Australian Capital Territory would reappoint
his Honour for such period as was necessary to enable him to
complete the trial.
| The bias point is rejected. | In any case, no exceptional |
| circumstance s have been shown. | Leave to appeal in matter |
| number ACT G 37 of 1995 is refused . |
We now turn to the application for leave to appeal
against the trial judge 's order by which the applicant's bail
was not renewed. Counsel for the Crown did not persist with
his argument that the Court had no appellate jurisdiction in
that matter .
The applicant argued that he should have leave to appeal against the bail decision because the trial judge had based it
upon the appl icant' s disruptive c~nduct which, he said, was a
•
16 .
matter to be dealt with in accordance with the principles
relating to contempt of court and was not within the exclusive
criteria regarding the grant of bail set out in s.22(1) of the
Bail Act 1992 (ACT) and, in particular, s.22(l)(c)(i).
In the course of giving his reasons the trial judge said:
"It is indeed a rare case where an accused person is
on bail while standing trial for murder. Had there been no course of disruptive conduct on the part of
the accused I would of course have allowed that
situation to continue, exceptional and unusual as it
is. However, I have no hesitation in saying that
the accused has now left me in a position where I feel I have no alternative but formally to revoke his bail."
His Honour did not indicate specifically the part that the disruptive conduct played in the process of his applying the criteria provided for by s.22(1) of the Bail Act, but in the overall context of his reasons we think it emerges that his Honour was basing his decision not upon the disruption as
such but upon the disruption as a factor which he considered
to be relevant to the criteria in s . 22 ( 1) (a). Accordingly,
even if s.22(1)(c)(i) is limited in the way contended for by
the applicant - a point upon which we need express no opinion
we do not think it has been shown that his Honour erroneously applied s.22(1).
'
1 •
Moreover, the refusal of the application for the re~ewal
of bail was very much a matter for the discretion and judgment of the judge presiding at the trial and in respect of such matters an appellate court is usually ill-equipped and
•
17.
reluctant to interfere. There is then , of course, the added
circumstance that the grant of leave to appeal would invol ve
interference with the course of the trial . In our view, no
exceptional situation of the kind required to warrant our
intervention in these circumstances has been made out and we
consider that leave to appeal should be refused.
During the course of the applicant's submissions to this Court, the applicant requested a declaration that the trial
Judge, Carruthers A. J. , was not validly appointed as a Judge
of the Supreme Court. His Honour was appointed an acting
Judge of the Supreme Court from 3 April 1995 to 22 December
1995 pursuant to s.4A of the Supreme Court Act . The applicant now seeks to argue that, by reason of the application to the
Territory of the doctrine of the separation of powers, the
purported appointment was invalid because s.4A itself and this
particular appointment "breaches the doctrine of separation of
powers" .
As we understood the submission, it was that there was invalidity because the executive was empowered to appoint
judges, including acting judges, in that way, was empowered to
interfere with the judicial arm of government . We reject this
| submission. | All judicial appointments in Australia, a~ting | ,. |
| !· |
and otherwise, are made upon the advice of the executive government of the day. It has never been suggested that this
in any way transgresses the separation of powers which is
provided for in the Commonwealth Constitution or in the
18 .
constitutions of States and Territories which have written
constitutions.
We make the following orders :
1. In each matter, leave to appeal is refused.
2 . The republication of these orders and the reasons
for judgment, except to the parties and their
legal advisers, is prohibited until further order
of the Court or a judge.
I hereby certify that this and the
preceding seventeen ( 17) pages are a
true copy of the Reasons for Judgment
herein of the Court.
|
"•
.;
APPEARANCES
The applicant represented himself .
| Counsel for the respondent : | M.F. Adams QC |
| J.E. Ibbotsen | |
| J. Brewster | |
| Date of hearing: | 3 and 4 July 1995 |
| Date of judgment: | 7 July 1995 |
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