R v Eastman (No 20)

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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:

  1. 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.

  2. 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.  

  3. 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.

  4. 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…

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Details
Case
[2017] ACTSC 229
Decision Date

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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