In the matter of an application re. the report of the board of inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester
[2014] ACTSC 178
•30 May 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application re. the report of the board of inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester |
Citation: | [2014] ACTSC 178 |
Hearing Date(s): | 30 May 2014 |
DecisionDate: | 30 May 2014 |
Before: | Murrell CJ |
Decision: | Application dismissed |
Category: | Interlocutory Application |
Catchwords: | INQUIRY AFTER CONVICTION – Report of Inquiry under pt 20 of Crimes Act 1900 (ACT) – Application for order of non-disclosure of report – Whether disclosure of report in public interest – Whether disclosure of parts of report breach previous orders |
Legislation Cited: | Crimes Act 1900 (ACT) pt 20 |
Parties: | Australian Federal Police (First Applicant) Director of Public Prosecutions (ACT) (Second Applicant) David Harold Eastman (First Respondent) Attorney General of the ACT (Second Respondent) |
Representation: | Counsel: Mr A Berger (First Applicant) Mr K Lee (Second Applicant) Mr J Masters (First Respondent) Mr P Garrison (Second Respondent) |
| Solicitors: Australian Government Solicitor (First Applicant) ACT Director of Public Prosecutions (Second Applicant) Legal Aid ACT (First Respondent) ACT Government Solicitor (Second Respondent) | |
File Number(s): | SC 222 of 2014 |
On the afternoon of 9 June 2014, yesterday, the Inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester (the inquiry) provided the Report of the Inquiry (the report) to the registrar of the Supreme Court of the Australian Capital Territory pursuant to pt 20 of the Crimes Act 1900 (ACT) (Crimes Act). Section 429 of the Crimes Act requires that the registrar give a copy of the report to the Attorney-General and the convicted person. Last night, the registrar provided an unredacted version and a redacted version of the report to both those persons.
Last night, the DPP applied for a copy of the report. As a consequence, I made orders that the registrar provide a redacted version of the report to the DPP and others who had been granted a right of appearance before the inquiry, ie, the AFP and Mr Barnes.
This morning the ACT Solicitor-General, on behalf of the Attorney-General, requested that a copy be disclosed to the immediate family of Mr Winchester. I amended my order to enable that to occur. The current position is that the Attorney-General and Mr Eastman have received redacted and unredacted versions of the report, while the DPP, the AFP, Mr Barnes and the Winchester family have received a redacted version of the report. All recipients of the report were ordered not to disclose the report.
The original nondisclosure order was to expire at 10.00 am this morning and was subject to requests for extension or variation. A request was made by the AFP. As a consequence, the matter was listed this afternoon at 3.45 pm for the purpose of applications concerning extension or variation of the nondisclosure orders made under s 429(2).
Section 429 provides:
429Publication of Report
(1)The registrar must give a copy of the report of a board of inquiry appointed under division 20.3 to the Attorney-General and the convicted person, together with a copy of any order under this section.
(2)The Supreme Court may make an order that the report, or particular parts of the report—
(a) must not be disclosed to anyone else by—
(i) the Territory; or
(ii) the convicted person (except to obtain legal advice or representation); or
(iii) someone else who obtains a copy of the report; or
(b) may be disclosed only to particular people or on stated conditions (for example, a condition requiring the consent of the court).
(3) The Supreme Court may make an order under this section only if it considers that it is in the interests of justice, having regard to the public interest and the interests of the convicted person.
(4) An order under this section may be enforced in the same way as any other order of the Supreme Court.
There is some uncertainty about whether, when it considers whether to make nondisclosure orders under s 429, the Supreme Court is acting in a judicial capacity or in an administrative capacity. I have assumed that the Court is acting in a judicial capacity because it has not been made abundantly clear that that is not so. However, I do note the terms of s 431(2) of the Act.
The application by the AFP is that the Court’s current nondisclosure orders be continued until next Monday or a later date for two reasons. First, it is claimed that it would be a denial of procedural fairness to persons who have been adversely mentioned in the report if the report was released without those persons having the opportunity to put arguments about extension of the nondisclosure order. The DPP joins in that application, but submits that, so far as three witnesses before the inquiry are concerned, the Court ought to release the redacted version of the report to them to enable them to consider the report and make any application that they may wish to make concerning nondisclosure. In effect, the application made on this basis by the AFP and the DPP is that witnesses, presumably any and all witnesses who may have been the subject of adverse comment in the report, should be given the opportunity to consider the report and make an application for nondisclosure.
There are a number of difficulties with this application. First, as far as I am aware, at the time of the inquiry, procedural fairness was extended to all significant witnesses. They received notices of potential adverse comment and (as was submitted on behalf of Mr Eastman), adverse comment is not itself a matter that would establish that a report should be suppressed because release would be contrary to the public interest. Indeed, the opposite argument could be made. As far as I am aware, there is no precedent for nondisclosure of the report of an inquiry on the basis that witnesses are concerned that adverse comments may have been made against them. I invited the AFP’s legal representative, and for that matter the DPP’s legal representative, to draw my attention to any case in which that had occurred. Many similar inquiries have taken place, notably ICAC inquiries. Generally speaking, the reports of those inquiries make adverse comment about numerous individuals. I have not been taken to any authority that supports the proposition that where adverse comment has been made against such witnesses that they have basis for successfully seeking suppression of the adverse comment or the report generally.
When the Court is considering the question of nondisclosure, it is to be guided by s 429(3) which provides that:
[t]he Supreme Court may make an order under this section [a nondisclosure order] only if it considers that it is in the interests of justice, having regard to the public interest and the interests of the convicted person.
The only basis upon which the Court can make a nondisclosure order is if it is in the interests of justice to do so, having regard to (a) the public interest and (b) the interests of the convicted person. The convicted person has not sought nondisclosure of the report.
As far as the public interest is concerned, a number of matters are relevant. First, the saga of Mr Eastman’s trial, conviction and numerous applications to courts and inquiries has consumed the attention of the Territory’s public for the last two decades. The public has enormous interest in knowing the outcome of the current extensive inquiry, which is not to say that this interest necessarily constitutes “public interest”. In the circumstances of this case however, I do believe that there is a very strong public interest in the release of the inquiry. The public interest supports it being in the interests of justice that the inquiry be released.
Regarding the application for an extension of time so that witnesses might make applications to the court about nondisclosure, for the reasons that I have indicated, it seems that any extension of time could not result in a successful application as the private interests of the witnesses could not possibly outweigh the strong public interest in the release of the report.
The second basis upon which the AFP seeks an adjournment of the proceedings and nondisclosure in the intervening period is that the AFP is concerned that some matters in the redacted version of the report may breach orders that have previously been made by this or other courts or by the inquiry itself. Such orders have been made in relation to matters such as organised crime activities. I am advised that some of those orders were made at the time of the original trial, back in 1995. I am asked to infer that they still have currency but I have not received copies of those orders. Insofar as the orders have been made by this Court, then they can be varied by the Court. Insofar as they were made by the inquiry, then inferentially the inquiry has varied the orders by publishing the matters in the redacted version. The same may, of course, not be true in relation to the unredacted version. That is a totally different question. The AFP submits that there has been inadequate time to consider whether and to what extent orders may have been breached by the provision by the inquiry to the Registrar of the report and may further be breached by the publication of the report to the public at large. However, in the absence of identifying clearly an order that has been breached and a particular part of the redacted version of the report that breaches that order, the Court is in a quandary in relation to the application. As I have mentioned, there is an overwhelming public interest in the release of the report. The redacted version inferentially contains material that is not of a confidential nature (as opposed to the unredacted version and the sealed confidential material that no one has seen).
As far as the convicted person is concerned, he has made no application in relation to nondisclosure. I note that the Attorney General, being the other party who is principally entitled to the report under s 429(1), has not made any application for an order of nondisclosure. The only people who have sought nondisclosure are two of the three parties who had leave to appear before the inquiry itself. They are, in a sense, persons with lesser standing than the Attorney and the convicted person.
It is my view that the interests of justice require that the redacted version of the report be released as soon as possible. Insofar as I made orders yesterday and this morning regarding nondisclosure of the redacted version, those orders are lifted.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 5 August 2014 |
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