R v Eastman (No 20) - [2017] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eastman (No 20)
Citation:	[2017] ACTSC 229
Hearing Date:	15 August 2017
DecisionDate:	18 August 2017
Before:	Kellam AJ
Decision:	The Crown’s application for the issue of a warrant to bring a witness to Court is dismissed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrest – subpoena unable to be served on witness – application by Crown for arrest warrant – no express power for Supreme Court to issue warrant where subpoena not served – whether inherent power of court permits issue of warrant
Legislation Cited:	Australian Capital Territory (Self-Government)Act1988 (Cth) s 48A Crimes Act 1958 (Vic) s 415(1)(b) Criminal Code1899 (Qld) s 593A Criminal Procedure Act 1986 (NSW) s 229 Evidence Act 1995 (NSW) s 194 Evidence Act 2008 (Vic) s194 Evidence (National Uniform Legislation) Act (NT) s 194 Human Rights Act 2004 (ACT) ss18 and 30 Magistrates Court Act 1930 (ACT) ss 63 and 64 Supreme Court Act 1933 (ACT) ss 20 and 70A Supreme Court Act 1935 (SA) s 35(3)(b) Supreme Court Act 1970 (NSW) s 23
Cases Cited:	Burow v The Queen [2015] ACTCA 61; 305 FLR 275 Kelly v Apps [2000] FCA 687; 98 FCR 101 R v Raymer; Re Papal [1973] VR 843 R v Stott [2017] ACTSC 126 Reid v Howard [1995] HCA 40; 184 CLR 1
Parties:	The Queen (Crown) David Harold Eastman (Accused)
Representation:	Counsel Mr K Lee (Crown) Mr D Ager (Accused)
Solicitors DPP (Crown) ACT Legal Aid Office (Accused)
File Number:	SCC 111 of 1992

Kellam AJ:

I have before me an application for a warrant to be issued for the arrest of (a witness) for the purpose of making him available to give evidence on a voir dire in the course of a pre-trial hearing in this proceeding. The pre-trial hearing is listed to commence on 11 September 2017.
The application for the issue of the warrant is supported by an affidavit affirmed by Lucy Hocking, a solicitor in the employ of the Office of the DPP, on 15 August 2017. This affidavit was filed in court on 15 August 2017. A further affidavit affirmed by Ms Hocking on 15 August 2017 was filed on 16 August 2017.
The affidavits demonstrate that efforts were made to serve a subpoena upon (the witness) since the subpoena was issued on 5 May 2017. Prior to that date, and in the course of the preparation of the eBrief in this matter, police had attended upon (the witness) at his premises at [redacted], and had spoken to him on his mobile phone. However the last time police spoke to (the witness) was 13 January 2015.
The address was confirmed by a search of the electoral roll and used as the address in the subpoena to (the witness). Subsequent to the issue of the subpoena requiring (the witness) to give evidence, it was ascertained on 24 May 2017 that (the witness)’s mobile…

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

Case: [2017] ACTSC 229
Decision Date: 18 August 2017

CaseChat Overview and Summary

The defendant, Eastman, was involved in a criminal case where the Crown sought an arrest warrant for a witness who could not be served with a subpoena. The matter was brought before the Supreme Court of Victoria. The primary issue before the Court was whether it had the inherent power to issue an arrest warrant for a witness when there was no express statutory authority to do so, and the subpoena had not been served on the witness.

In addressing this issue, the Court considered the established common law position that a court does not have the inherent power to issue an arrest warrant for a witness in civil or criminal proceedings when the statutory means to compel attendance have failed. The Court noted that the common law doctrine of inherent jurisdiction is limited and cannot be extended to create new remedies. Furthermore, the Court observed that the statutory framework in Victoria does not provide for the Supreme Court to issue a warrant where a subpoena has not been served. The Court held that without clear statutory authority, it could not exercise such an inherent power, as doing so would effectively create a new remedy, which is beyond the scope of inherent jurisdiction.

Consequently, the Court dismissed the Crown’s application for the issuance of a warrant to bring the witness to court. The Court’s decision underscores the importance of statutory authority in judicial processes and the limitations of inherent jurisdiction in creating new remedies.

Orders

Orders of the court

The Crown’s application for the issue of a warrant to bring a witness to Court is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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