R v David Harold Eastman [1995] ACTSC 3 (10 February 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. DAVID HAROLD EASTMAN
No. SCC111 of 1992
Number of pages - 15
Courts and Judges

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Courts and Judges - disqualification for apprehended bias - nature of test to be applied - whether reasonable observer might apprehend that judge might not decide case impartially - significance of word "might" - whether decisions adverse to party in prior proceedings lead to apprehended bias - whether acceptance of witness in prior proceedings might lead to apprehended bias in later proceedings where witness likely to be challenged.

Courts and Judges - contempt of court other than in face of court - powers and duties of judges to act on information suggesting possible contempt - powers and duties of Chief Justice - whether failure to act on information leads to apprehended bias.

Courts and Judges - application for disqualification for actual bias - not maintainable where no apprehended bias.

Courts and Judges - disqualification for bias - necessity in exceptional cases - where in court of three judges one has disqualified himself and another is clearly disqualified, remote possibility of remaining judge being seen as biased should disqualify remaining judge.

Webb v. R [1994] HCA 30; (1994) 68 ALJR 582 at 583

Livesey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292
Killen v. Lane (1983) 1 NSWLR 171
Australian National Industries Limited v. Spedley Securities Limited (1992)

26 NSWLR 411

R v. Masters (1992) 26 NSWLR 450
Re Polites; ex parte Hoyts Corporation Pty Ltd (No. 2) [1991] HCA 31; (1991) 173 CLR 78
Re J.R.L.; ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342
Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

HEARING

CANBERRA, 23 January, 7 and 8 February 1995
10:2:1995

Counsel for the applicant: On 23.1.95: Mr. Ramage, QC, with
Mr. C. Jeffreys
On 7.2.95: Mr. Eastman in person

Solicitors for the applicant: Messrs Sutherland and Tiirikainen

Counsel for the respondent: Mr. M. Adams, QC, with
Mr. J. Ibbotson

Solicitors for the respondent: ACT Director of Public Prosecutions

ORDER

The Court orders that:
The application be dismissed.

DECISION

MILES CJ This is an application made by notice of motion filed on 16 January 1995 that I disqualify myself from presiding over the trial of the accused, Mr. David Harold Eastman. Mr. Eastman is charged with the murder of Colin Stanley Winchester on 10 January 1989. Mr. Eastman was committed for trial on 24 December 1992. An indictment dated 29 March 1993 has been presented to the Court. Mr. Eastman has not been arraigned. He is on bail. The hearing date has been fixed for 3 April 1995. The present application is supported by the affidavit of Mr. Eastman's solicitor, sworn 16 January 1995 to which is attached a number of transcripts of proceedings before myself and some other documents.

2. At a directions hearing on 2 December 1994 when Mr. Eastman appeared for himself, he intimated that I should consider whether I should disqualify myself from presiding over the trial. However, Mr. Eastman refrained from making any application to that end. On 9 December 1994 I announced in court the reasons why I considered that I should not disqualify myself. At the risk of repetition, this is what I said:

"On 2 December last I made an administrative decision to assign
to myself the task of presiding over the trial of David Harold
Eastman. This followed an earlier decision of Gallop J to
disqualify himself as the presiding judge. My decision followed
an invitation to both Mr. Eastman and counsel for the
prosecution to inform me of any reason why I should not assign
the case to myself. I informed them of the nature of my past
contact with Mr. Eastman, my participation in matters in the
court concerning Mr. Eastman, and there is no need to repeat
what I said. Mr. Eastman submitted that my conduct in relation
to complaints made by him and in proceedings brought by him over
what he considered was action by court officials, police
officers and others standing in the way of him obtaining a fair
trial was such that I should not assign the trial to myself.
Counsel for the prosecution made no submissions in that regard.
After I announced that I assigned the trial to myself, Mr.
Eastman said that he wanted to flag a desire to make a formal
application for my disqualification, that his application would
not proceed until done properly by a Queen's Counsel and that
that would not occur until I took steps to ensure that
interference with his right to instruct his lawyers ceased. In
that regard I took him to be referring to an application he made
from the bar table for me to bring before the court certain
persons to answer a charge of contempt of court arising out of
certain events at Parliament House on 28 November, and reports
of those events over the local radio and in the local press.
I declined to entertain the application from the bar table, or
to initiate proceedings of my own motion, and I said that it was
a matter for Mr. Eastman, if he wished, to initiate proceedings
by filing appropriate documents in the court registry. Mr.
Eastman informed me that he was withdrawing his instructions to
his lawyers as a result of my inaction with regard to the
alleged contempt of court. Nevertheless, I remanded Mr. Eastman
until today to enable Mr. Eastman to make an application for me
to disqualify myself, and I informed him that the application
should be by way of notice of motion and affidavit setting out
the supporting grounds.
No notice of motion was filed and, indeed, no application is now
made by Mr. Eastman for my disqualification, but he has invited
me to disclose any ground on which I might disqualify myself.
He reminded me of the possibility that I may have some relevant
association with a witness or witnesses. In response to the
reminder, I requested Mr. Adams, senior counsel for the
prosecution, to furnish the Registrar with a list of proposed
witnesses. That has been done today and I have examined the
list.
The question of my disqualification from determining matters in
which Mr. Eastman is a party arose as long ago as 18 September
1992. On that date I sat to hear an application in the matter
of Eastman v. Ninness and Others, SC 659 of 1992, in which the
respondents sought to strike out a notice of motion filed by Mr.
Eastman seeking various injunctions. Mr. Eastman asked me to
disqualify myself from hearing the strike-out application,
essentially on the ground that I had already formed, if not
expressed, views adverse to Mr. Eastman as a result of written
complaints made by him about the conduct of various persons in
and around the court building. I acknowledged that I had
conducted some such inquiries and caused others to be made, at
the end of which I had not taken any further action.
I acknowledged also that if I were to sit on the hearing of the
motion itself there could be an appearance of bias. I said also
that I expected that in due course a non-resident judge would
sit on the hearing of the motion then before the court.
However, I declined to discharge myself from determining the
strike-out application. In the event, I dismissed the
strike-out application and ordered that the notice of motion be
stayed so long as Mr. Eastman filed a statement of claim within
21 days. However, on 7 October 1992 a notice of discontinuance
was filed in that matter, SC 659 of 1992.
Although since 18 September 1992 some matters have come before
me in court in which Mr. Eastman is a party, I do not think that
there has been any change in relation to the matter of my own
possible disqualification. On 23 September 1992 I made an order
granting bail to Mr. Eastman, subject to certain conditions. On
4 and 7 December 1992, in Eastman v. Australian Federal Police,
SC 849 of 1992, and Cotter v. Eastman, SC 873 of 1992, I
declined to make orders. I did so without expressing a view as
to the credibility of the parties. On 12 August 1994, I refused
an application by Mr. Eastman for a writ of prohibition against
Magistrate Fryar. I have been approached by the Registrar in
relation to an oral application by Mr. Eastman for a writ of
habeas corpus when Mr. Eastman was in custody. I declined to
make an order nisi for the issue of a writ of habeas corpus in
response to that approach.
Since September 1992, Mr. Eastman has written a number of
letters to me complaining about my own conduct, the conduct of
other judges, the conduct of court officials and the conduct of
some other persons occupying official positions. On each
occasion of the receipt of such a letter, I have directed the
Registrar to refer the complaint to an appropriate body, such as
the Ombudsman, and to inform Mr. Eastman accordingly. I have
also, on numerous occasions, requested the Registrar to request
Mr. Eastman not to write to me directly. In the end, I believe
that I am in no different position as a result of these matters
from the position I was in on 18 September 1992 when I declined
to disqualify myself from hearing the strike-out application
brought against Mr. Eastman.
The list of proposed witnesses which I examined today contains
the names of a number of persons known to me. There may be
others whose names do not stimulate recall. None of the names I
recognize are those of close associates. Some of them have
appeared in cases over which I have presided and in which I have
given judgment. Persons in that category are medical
practitioners, members of the Australian Federal Police and
forensic scientists. It is common for a judge to hear evidence
from such persons, and unless the judge has expressed a view
upon the credit of the witness which given rise to the sort of
apprehension that I will mention in a moment, it does not
disqualify the judge from hearing any other case in which the
witness gives evidence. Some of the persons whose names appear
in the list I have met socially, usually at gatherings of a
professional or semi-professional nature.

The principles relating to disqualification for bias have been
discussed and restated in many judicial decisions at the highest
level. They were set out by Gallop J when his Honour
disqualified himself recently. They arise from the basic
principle that the courts must secure a fair trial for accused
persons and that it must be apparent to the observer that a fair
trial is so secured. Hence the test is as recently put by Mason
CJ and McHugh J, with whom some other members of the High Court
agreed, in Webb v. R [1994] HCA 30; (1994) 68 ALJR 582 at 583, where it was
said:
"When it is alleged that a judge has been or might be actuated
by bias, this Court has held that the proper test is whether
fair-minded people might reasonably apprehend or suspect that
the judge has prejudged or might prejudge the case."
That was a case involving the discharge of a jury, and in
relation to the jury their Honours said as follows:
"The test that should have been applied was whether the
circumstances of an incident in question would (sic) still give
a fair-minded and informed observer a reasonable apprehension of
a lack of impartiality on the part of the juror despite the
warning that the judge proposed to give to the jury."
In Livesey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR
288 at 294, the High Court said as follows:
"In a case such as the present where there is no allegation of
actual bias, the question whether a judge who is confident of
his own ability to determine the case before him fairly and
impartially on the evidence should refrain from sitting because
of a suggestion that the views which he has expressed in his
judgment in some previous case may result in an appearance of
pre-judgment can be a difficult one involving matters "of degree
and particular circumstances may strike different minds in
different ways" (per Aickin J in Shaw (1980) 55 ALJR at 16. If
a judge at first instance considers that there is any real
possibility that his participation in a case might lead to a
reasonable apprehension of pre-judgment or bias, he should, of
course, refrain from sitting. On the other hand, it would be an
abdication of judicial function and an encouragement of
procedural abuse for a judge to adopt the approach that he
should automatically disqualify himself whenever he was
requested by one party so to do on the grounds of a possible
appearance of pre-judgment or bias, regardless of whether the
other party desired that the matter be dealt with by him as the
judge to whom the hearing of the case had been entrusted by the
ordinary procedures and practice of the particular court."
Later in the same judgment their Honours said at 299:
"Necessity and the ordinary case make it impossible to lay down
an inflexible rule; each case must be determined by reference to
its own particular circumstances. It is, however, apparent
that, in a case such as the present, where it is not suggested
that there is any overriding consideration of necessity, special
circumstances or consent of the parties, a fair-minded observer
might entertain a reasonable apprehension of bias by reason of
prejudgment if a judge sits to hear a case at first instance
after he has, in a previous case, expressed clear views either
about a question of fact which constitutes a live and
significant issue in the subsequent case or about the credit of
a witness whose evidence is of significance on such a question
of fact."
Applying those principles to the present circumstances, I do not
see that they give rise to a reasonable apprehension on the part
of a fair-minded member of the public, that I would not
discharge impartially the function of the judge required to
preside over the trial of Mr. Eastman. Of course, it is always
possible, in a sense, that the observer might entertain such an
apprehension, to use the terminology of Livesey, rather than
that of Webb, but the requirement is that the apprehension be
reasonable and in my view that aspect must not be overlooked.
Disqualification is not to be based on remote chances or
speculation about what the public might think.
Furthermore, whatever concern the public might have reasonably
about a judge presiding over a jury trial who has had some
acquaintance with the witnesses, or who has decided other
matters affecting one or other of the parties, or who has been
the recipient of communications by one of the parties, has to be
recognized as just that, concern and not necessarily
apprehension.
A judge presiding over a jury trial does not decide the issue of
guilt or otherwise and, indeed, is frequently called upon to
decide issues of law and sometimes on the voir dire issues of
fact in which evidentiary material quite prejudicial to the
accused if put before the jury is brought to the judge's
attention. Magistrates and judges sitting without a jury in
criminal cases decide issues on sentence after making findings
adverse to the accused on issues of guilt.
In Livesey, furthermore, the High Court referred to necessity
and the extraordinary case. An indictment has been presented
against Mr. Eastman. There are only three judges of this court
to whom the trial can be assigned by me in the exercise of my
statutory responsibility for the dispatch of the business of
this court. One judge has disqualified himself. I understand
that another has acted for Mr. Eastman in relation to some of
the events which provide the background to the charge for which
he is to be tried. Clearly that judge would be disqualified. I
am informed that no additional judge of the court is available
for the trial on the date fixed, or any other date. Whilst I
cannot completely exclude the possibility that members of the
public might entertain an apprehension that I cannot approach
the issues in the trial with an impartial and unprejudiced mind,
I consider such apprehension to be unreasonable and the
possibility remote. In any event the extraordinary circumstance
whereby no other judge is available leads me to the conclusion
that I should not disqualify myself and I decline to do so."

3. On 16 December 1994, Mr. M. Ramage, QC announced that he appeared for Mr. Eastman, with Mr. Clive Jeffreys, instructed by Messrs Sutherland and Tiirikainen, agents for Messrs Klees Chicken and Associates of Riverwood, New South Wales. Mr. Ramage said that Mr. Eastman wished to apply for an order that I disqualify myself from the trial. Other matters were raised to which I shall return. I then fixed 23 January 1995 for the hearing of the application, provided that an appropriate notice of motion and supporting affidavit were filed. On 23 January 1995 the application proceeded on the notice of motion and an affidavit sworn by Mr. Klees, solicitor, on 16 January 1995. The affidavit stated that Mr. Klees was instructed that the accused "does not believe that he will receive a fair trial if the learned Chief Justice of this honourable Court presides over his trial or that there is a reasonable apprehension of possible bias on behalf of the learned Chief Justice". Mr. Adams, QC for the prosecution objected to evidence of Mr. Eastman's beliefs in this regard. This was a valid objection because the test whether the parties or a member of the public might entertain a reasonable belief that the judge might not decide the case impartially is an objective one. The subjective beliefs of the party seeking to have the judge disqualified are irrelevant. However, the rejection of the evidence of Mr. Eastman's beliefs as inadmissible has no real effect on my consideration of the issues to be considered. Subject to some further elaboration of the law on the subject, I see no reason to change the general nature of my approach to the question from the way I expressed it on 9 December 1994.

4. During the course of the hearing on 21 January 1995, Mr. Ramage took me through parts of the transcript annexed to the affidavit of Mr. Klees. At the end of the day the application was adjourned part-heard to 7 February 1995 and that day and the following day were set aside for the further hearing.

5. In the meantime, application was made through the Registry for the matter to be listed for mention. On 2 February 1995 Mr. Ramage appeared to announce as a matter of courtesy that his instructions to appear in the disqualification application were withdrawn as were those of his junior, Mr. Jeffreys, and his instructing solicitors. Mr. Ramage stated that his instructions to appear on 3 April 1995 and at a directions hearing on 10 February 1995 still stood.

6. On 7 February 1995 at the adjourned hearing of the disqualification application, Mr. Eastman appeared in person and applied for an adjournment in order to find and instruct new counsel. His application for an adjournment was refused for reasons which I gave at the time. Mr. Eastman then contended, as I understand it, that the application should not proceed as to allow it to do so would be in contravention of the principles laid down in Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292. However, I considered that the matter should proceed and invited Mr. Eastman to put any other matters which might dissuade me from the views I had expressed on 9 December 1994. Mr. Eastman's response was that he declined to represent himself. He did inform me, however, in strong language, that the ground for disqualification was actual bias on my part and that the refusal of Mr. Ramage and Mr. Jeffreys to follow his instructions in that regard was one of the matters that had led to his termination of instructions to them. Mr. Eastman also confirmed that, whilst he did not propose to take any further part in the hearing, the disqualification application was "certainly not" withdrawn.

7. I then invited Mr. Adams to refer me to the remainder of the transcript upon which the application appeared to rely and to remind me of the matters put by Mr. Ramage and any other matters that I should take into account in further consideration of the application. Mr. Adams commenced to do so. Mr. Eastman indicated that he did not propose to attend the hearing beyond the short morning adjournment, on the ground that the proceedings were being conducted in denial of natural justice. After the short adjournment the hearing continued in Mr. Eastman's absence. It was not concluded at the end of that day and it continued the following day, also in Mr. Eastman's absence. At the conclusion of the hearing on the morning of 8 February 1995 I announced that I refused the application that I disqualify myself as the trial judge and I said that I would give reasons today.

8. The matters which Mr. Ramage submitted might give rise to a reasonable apprehension that I might not conduct Mr. Eastman's trial impartially (and which Mr. Eastman said gave rise to actual bias on my part) ranged over a number of events and incidents commencing in 1987 and continuing until the middle of 1994. Mr. Ramage emphasised that it was the cumulative effect of these matters upon which reliance was placed, rather than the effect of any single one. I summarise the various matters relied upon, beginning with the series of court hearings in which Mr. Eastman has appeared before me.

SC 701 of 1991 - 3 October 1991
9. This was an application seeking by way of order nisi for writ of prohibition to have Magistrate Somes disqualified from embarking upon the hearing of certain committal proceedings. The hearing of the committal proceedings had not commenced and it was possible that those proceedings would come before another magistrate. There was no basis upon which the order sought (or in my view, anything like it) could be justified. There was no determination concerning Mr. Eastman's credibility.

SC 97 of 1992 - 20 February 1992
10. This was an application seeking by way of order nisi for writ of prohibition to have Magistrate Somes disqualified from embarking upon other committal proceedings, the hearing of which had not commenced. It was possible that the proceedings might be commenced before another magistrate. Again there was no way that the application for an order for a writ of prohibition could succeed. However, I suggested to Mr. Eastman that an application might be appropriate under the Administrative Decisions (Judicial Review) Act 1993 (ACT) (the ADJR Act). It is said that I was discourteous to Mr. Eastman during the course of the hearing.

SC 64 of 1992
11. This was an application under s.5 of the ADJR Act which took place over several days between 21 February 1992 and 26 March 1992, often outside ordinary court hours as Mr. Eastman contended that it was a matter of urgency. By the time the application was concluded, Magistrate Somes had decided that he would hear certain committal proceedings and he committed Mr. Eastman for trial on a number of charges under the Crimes Act 1900 (ACT) and the Crimes Act 1914 (Clth). There were several procedural difficulties with the application. During the course of the hearing I took the view that the only decisions that could be challenged under the ADJR Act were those made in respect of offences under the Crimes Act 1900 (ACT) and that the informants in those cases should be given notice of the hearing. They were given notice and they were represented. I did not hold Mr. Eastman to the usual formalities of amending the court record and the question of who the parties were at any one time might not be clear. I informed Mr. Eastman during the hearing that if he wished to challenge the decisions made in respect of the charges under the Crimes Act 1914 (Clth), that might be done in separate proceedings.

12. The basis of the application was contained in an affidavit sworn by Mr. Eastman to the effect that he was told by officers of the Magistrates Court that they heard Mr. Lalor, counsel for the informants in the Commonwealth prosecutions, say that Magistrate Somes was in favour of the issue of a consolidated summons. I expressed the view in my reasons for judgment that if this was said it could relate only to the prosecution of offences under the Crimes Act 1914 (Clth) and did not affect any decision of the Magistrate relating to offences under the Crimes Act 1900 (ACT). I also said in the judgment that the allegations in respect of the Magistrate's conduct were inconclusive and I declined to make any order to review the Magistrate's decisions on the ground of his apparent bias.

13. It is said that during the course of the hearing of this matter I was rude, failed to ensure that Mr. Eastman understood matters that I put to him and failed to ensure that I understood matters that Mr. Eastman put to me, that I failed to give him the assistance appropriate to an unrepresented litigant and that I misled him as to the importance of calling or seeking leave to call oral evidence from the officers who heard Mr. Lalor say that the Magistrate was in favour of a consolidated summons.

SC 162A of 1992 - 17 and 18 March 1992
14. This matter began at 4.35 p.m. as an urgent oral application from the Bar table by Mr. O'Donnell of counsel appearing for Mr. Eastman in which he sought an order for the issue of writ of habeas corpus The application arose out of the conviction of Mr. Eastman earlier in the day and a consequent fine of $50. The fine was not paid and a warrant issued for Mr. Eastman's imprisonment for seven days. I could not see any reason for the issue of the writ of habeas corpus, but said that in the exceptional circumstances I would make an order nisi for the issue of a writ addressed to the keeper of the watch-house returnable the following day.

15. On 18 March 1992 I dealt further with the matter of the order nisi and some other questions that arose during the course of the hearing during which Mr. O'Donnell continued to represent Mr. Eastman. Although still of the view that habeas corpus was inappropriate, I ordered that the order nisi continue until further order of the court. As it appeared that an appeal would be lodged against the conviction, I ordered that the warrant of commitment to prison should be returned to the Registrar of the Magistrates Court to lie there until further order. I then granted bail in another matter, Pitkethly v. Eastman, on which Mr. Eastman had been committed for trial the previous day and on which the Magistrate had apparently not granted bail. It is said that I should have made an order on the first day of the hearing which would have resulted in Mr. Eastman's release, that I displayed impatience and that I was unduly critical of counsel in relation to the preparation of the application and to submissions put in support of it.

SC 600 of 1992 - 26 August 1992
16. This was an application for bail by Mr. Eastman after bail was refused by a Magistrate on a charge of assaulting Magistrate Murphy. Mr. Eastman objected to my hearing the application on the ground that I was biased. The bias was said to have been demonstrated by what Mr. Eastman considered my failure to take action or to take appropriate action over what he alleged was harassing conduct on the part of officers of the court. Mr. Eastman asked that the application be heard by an additional judge and not by one of the three resident judges. I declined to disqualify myself and declined to try to make arrangements to have an additional judge come from interstate to hear the application. Mr. Eastman then told me that I was "personally corrupt", that "this Court is corrupt" and that I had "condoned criminal behaviour by Sheriff's officers".

SC 614 of 1992 - 1 September 1992
17. This was a further application for bail in relation to the charge just referred to but also in relation to a number of other charges alleging that Mr. Eastman had made harassing telephone calls. Evidence was given by Mrs. Circosta, the Deputy Registrar, about telephone calls made to her by Mr. Eastman. Mr. Eastman cross-examined the Deputy Registrar. During the course of cross-examination he put to her that she "consented to participate in these conversations". In his evidence Mr. Eastman said that because of the serious misconduct of certain court officers he had "a right to ring Mrs. Circosta at her home number if I couldn't get her at work", adding that "if justice is not being properly administered you will have to cop home phone calls until it is". After hearing argument from Mr. Eastman on the question of bail and on other matters relating to what he alleged to be harassment by court officers and others, I granted bail on certain conditions that he not telephone or attempt to telephone certain persons, and I had it noted that the conditions were not intended to impede any communication between a legal practitioner acting on Mr. Eastman's behalf and any of the other persons. I declined to make the orders Mr. Eastman sought in relation to certain members of the court staff.

SC 659 of 1992 - 18 September 1992
18. This was an application to strike out proceedings taken by Mr. Eastman against Richard Thomas Ninness and others. I said that I would deal with the application to strike out but that I would not deal with the substantive application by Mr. Eastman. In the event I refused the application to strike out the proceedings but I stayed the proceedings as then formulated in order to allow Mr. Eastman time to file a statement of claim. I declined to make interim orders as requested by Mr. Eastman and I said that I would request the Commissioner of the Australian Federal Police to cause an inquiry to be made into the allegations made by Mr. Eastman as to police misconduct and to notify me of the outcome of the inquiry.

SC 680 of 1992 - 23 September 1992
19. This was in effect a further application for bail to be granted without the conditions imposed on the previous occasions. It resulted in a renewal of bail but with conditions substantially similar to those previously imposed. The trial of the charge of assault on Magistrate Murphy was fixed for hearing on 12 October 1992, although Mr. Eastman opposed the fixing of a trial date.

SC 70 of 1992 - 25 September 1992
20. On this occasion Mr. Eastman applied to vacate the trial date fixed for 12 October 1992. The application was refused.

SC 849 of 1992 and SC 873 of 1992 - 4 December 1992
21. This was an application by Mr. Eastman on notice of motion seeking certain orders to restrain members of the Australian Federal Police from approaching him or his residence and certain other orders. The notice of motion named Australian Federal Police as the only respondent. I ordered that insofar as the notice of motion named Australian Federal Police as a respondent it was struck out and insofar as it sought ex parte relief against other persons, it was dismissed. I refused to make an order for costs in favour of Australian Federal Police.

3 November 1993
22. On this occasion at about 2.15 in the afternoon when the court was about to resume the hearing of the trial R v. Abulghassemian and Others, Mr. Eastman came forward into the body of the court and said that he wished to make an application arising out of an incident that occurred in court earlier in the day. I said that I would hear the application later in the day, namely at 4.15 p.m. At that hour Mr. Eastman's name was called outside the court and he did not answer. I said that I regarded the application as abandoned.

SC 524 of 1994 - 12 August 1994
23. This was an application by Mr. Eastman seeking an order for the issue of a writ of prohibition against Magistrate Fryar. Mr. Eastman said on this occasion that he did not seek my disqualification, at the same time reserving his right to object to my presiding on a future occasion. I declined to make the order sought. I am told that subsequently Mr. Eastman made an application for the issue of a writ of habeas corpus which was eventually granted by Gallop J, who also made an order for the issue of a writ of prohibition against Magistrate Fryar. However, I am no longer aware of the material that was before me and I am not aware of the material that was before Gallop J.

24. There were also annexed to Mr. Klees' affidavit transcripts of the proceedings before me which may be regarded as proceedings within the trial in respect of which the indictment dated 29 March 1993 has been presented. Those proceedings took place on 2 December 1994, 9 December 1994, 16 December 1994. I have already made reference to what happened on each of those days.

25. In addition to the above, the affidavit of Mr. Klees states that he has received instructions that Mr. Eastman was arrested on 29 July 1994 on charges relating to the use of a telephone and that thereafter there were various proceedings in the Magistrate's Court and in this Court (and before Deane J in the High Court) which culminated in Gallop J ordering the issue of a writ of certiorari and a writ of prohibition on 26 September 1994. I have already referred to this matter.

26. A further matter upon which the application rests relates to Commander Ninness of the Australian Federal Police. I was told by Mr. Eastman from the Bar table that Commander Ninness is a key witness in the prosecution case, but I have no idea what his evidence is likely to be. I assume for the purposes of the present case that Commander Ninness is one of the senior officers of the Australian Federal Police responsible for the investigation for police purposes into the death of Colin Stanley Winchester.

27. The application for my disqualification relies inter alia upon a decision made by me in a voir dire hearing in a trial in 1987, SCC 49 of 1987. An extract from reasons for ruling during that trial, handed down on 27 October 1987, indicates that the accused in that trial stated in evidence on the voir dire that he had not made verbal admissions to Chief Inspector Ninness, as he then was, as alleged in the prosecution case. The accused also stated that the police had placed pressure upon him by threatening he would be locked up and lose the custody of his children unless he pleaded guilty. I stated in the reasons published on 27 October 1987 my finding that the threats and inducements alleged by the accused in that case had not in fact been made. I made some remarks about the lack of success of an attack upon the credit of Chief Inspector Ninness in cross-examination. I stated also that I placed particular importance on the evidence given by another member of the Australian Federal Police, Detective Sergeant Peters, which lent support to the evidence of Chief Inspector Ninness.

28. It would, I take it, have been submitted on behalf of Mr. Eastman, or by him, that the acceptance by me of the evidence of Chief Inspector Ninness in 1987 might lead the reasonable observer to conclude that I might not bring an impartial mind to bear on the question whether any evidence he might give on a voir dire hearing in the trial of Mr. Eastman should be accepted. It might have been further argued that that issue would have to be considered along with allegations that have been made by Mr. Eastman or on his behalf that on 9 December 1994 after leaving this court Commander Ninness acted in a harassing manner and that I failed to act on those allegations in accordance with a duty cast upon any member of a court who has been informed of conduct which could constitute contempt of court.

29. A judge hearing a case in court who observes or receives information about conduct of a person which could constitute contempt in the face of the court, has the power to act upon that observation or information in order to bring that person before the judge and charge the person with contempt. Incidental to that power is the power to make some further inquiry as to the conduct in question before the person is brought before the judge or before the person is charged. There is also contempt of court which is not committed in the face of the court but which tends to obstruct the court in a more general way so that it obstructs the administration of justice. The powers of this Court or of a judge in that regard are less clear. As Mr. Adams has pointed out, there is nothing in the Supreme Court Act 1933 which gives the Chief Justice of this Court any greater power or responsibility than that of any other judge except to the extent that s.7 casts upon the Chief Justice the responsibility of ensuring the orderly and expeditious discharge of the business of the court. The inherent power of a superior court of unlimited jurisdiction such as the Supreme Court of an Australian State or Territory, has always been taken to include the power to punish, and to act, in cases of contempt, even if the contempt is not in the face of the Court. In this Territory, however, there is no statutory provision as to the extent of the power or how it is to be exercised as there is say in New South Wales where the power is exercised by the Court of Appeal (Supreme Court Act 1970, s.48) and the procedure governed to some extent by Rules (O.55). It has been said that the exercise of the power is entirely a matter for the court as a ministerial decision taken of its own motion: Killen v. Lane (1983) 1 NSWLR 171.

30. I make these observations in order to preface my conclusion that a reasonable observer would not see in the decision of a judge to act upon an allegation of contempt of court, or to refrain from acting upon such allegation, as involving a judgment on the credibility of the person making the allegation. In particular, the reasonable observer would not conclude that by so acting or refraining from acting, the judge was not able to bring an unprejudiced mind to deciding a case in which that person was a party or a witness.

31. Finally the affidavit of Mr. Klees annexes a number of documents relating to complaints and allegations made by Mr. Eastman about harassing conduct on the part of Sheriff's officers, court registry staff and members of the Australian Federal Police. The first of such documents appears to be a letter to the Registrar of 6 April 1992 and the last a letter by the Registrar to Mr. Eastman of 26 April 1994.

32. I do not intend to discuss the content of these documents at length. Suffice it to say that the nature of the complaints was such that I considered it appropriate to write direct to Mr. Eastman on 15 May and 1 July 1992. On other occasions I referred the complaints to the Registrar, sometimes with a request to reply to Mr. Eastman and sometimes with no such request, sometimes with a request to refer the complaints to other appropriate persons or bodies and sometimes without such a request.

33. I do not think that an examination of these documents would reveal to the reasonable observer any decision by me relating to Mr. Eastman's credibility.

34. Although I do not think that there is any reason to change or qualify any of the remarks I made on 9 December 1994 as to the principles of law to be applied, there are one or two aspects on which it may be desirable to say something further in the light of the submissions put by Mr. Adams.

35. The formulation of the principle in Livesey, that the test is whether the parties or public might entertain a reasonable apprehension that the judge might not bring an impartial mind to the resolution of a question involved in the case to be decided, might be thought to set a very low threshold, since on the face of it there would seem to be a very wide range of circumstances in which a court would (or might) conclude that there was a bare possibility of the observer considering that there was a bare possibility of the judge being biased in the relevant sense. It appears to have been concern of that nature that led to a Court of Appeal of five judges in New South Wales in Australian National Industries Limited v. Spedley Securities Limited (1992) 26 NSWLR 411 considering whether a judge of the Commercial Division should continue to hear a series of cases arising from complex company litigation in some of which the judge had made findings critical of the credit and conduct of certain parties. A majority of the Court of Appeal found that the judge was disqualified for ostensible bias according to the Livesey test, a test which Meagher JA, applying that test as he felt bound, described as "austere and unrealistic" (at 449).

36. On the same day as the Court of Appeal sat to hear Spedley, the Court of Criminal Appeal sat to hear R v. Masters (1992) 26 NSWLR 450 in which the same general question was raised, but where the particular circumstances were that the judge presiding over a criminal trial with a jury had formed an adverse view of the accused on a bail application before trial and had found indeed that the accused was likely to commit further serious offences if bail were granted. The decision in Spedley was handed down before that in Masters and appears to have come to the attention of the Court of Criminal Appeal.

37. The unanimous view of the Court of Criminal Appeal (which was not bound to follow the Court of Appeal) was that since Livesey the joint judgment of the High Court in Re Polites; ex parte Hoyts Corporation Pty Ltd. (No.2) [1991] HCA 31; (1991) 173 CLR 78 and that of Mason J, as he then was, in Re J.R.L.; ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 were to the clear effect that "the fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias" (at 471).

38. At 472-3 the Court of Criminal Appeal continued:

"We do not accept the submission on behalf of Richards that a judge
would be obliged to disqualify himself from continuing with a
criminal trial because, in deciding the admissibility of evidence
after a voir dire examination in which the accused gave evidence, he
had expressed views critical of the accused's credit and because it
was likely that he may have to determine later in the case another
issue involving the credit of the accused on either a further voir
dire examination or when imposing sentence. Such a proposition
makes nonsense of the judicial system. We do not pause to consider
whether that is so because the principle of apprehended bias does
not operate so as to require the judge to be disqualified during the
course of the one trial or because such a case falls within the
somewhat uncharted exemption afforded for necessity: Livesey v. New
South Wales Bar Association (at 300). We see no distinction between
the situation where the decision in question is made on a voir dire
examination during the trial and the situation where the judge has
in a pre-trial motion decided an issue against an accused which
may well arise again for his decision in the trial itself."

39. If a choice has to be made between Spedley and Masters, I would, with respect, choose the latter. It is a judgment concerning a criminal trial. It is a unanimous judgment and it is consistent, in my view, with the two High Court decisions mentioned which followed Livesey in point of time. It is also consistent with some of what was said in Webb v. R [1994] HCA 30; (1994) 122 ALR 41. At 43-4, Mason CJ and McHugh J said:

"In our opinion, the test that his Honour should have applied was
whether, despite the warning that he proposed to give to the jury,
the circumstances of the incident would still give a fair-minded and
informed observer a reasonable apprehension of lack of impartiality
on the part of the juror.
When it is alleged that a judge has been or might be actuated by
bias, this Court has held that the proper test is whether
fair-minded people might reasonably apprehend or suspect that the
judge has pre-judged or might pre-judge the case."
Brennan J, dissenting on other aspects, said at 51:
"It is a valid ground of objection to the continued sitting of a
judge or juror in a criminal trial that a fair-minded and informed
member of the public would entertain a reasonable apprehension that
the judge or juror will not discharge his or her duty impartially."
Deane J, also dissenting on other aspects, described the test
at 65-66 as:
"Whether, in all the circumstances, the conduct of the particular
juror would cause a fair-minded lay observer with knowledge of the
material objective facts to entertain a reasonable apprehension that
the particular juror, and/or other jurors under her influence, might
not bring an impartial and unprejudiced mind to the determination of
the appropriate verdict in the case of each of the accused persons."

40. The effect is, in my respectful view, that the use of the word "might" where it twice occurs in the Livesey formulation should be read in the context of that case and in the light of the later judgments of the High Court. Further, there should be due recognition of the fact that the test is of the fair-minded observer with knowledge of the facts that are material, material that is to say to the question of possible lack of impartiality as well as to the issue which the judge has to decide.

41. I do not think that it is necessary to add anything about necessity to what I said earlier. However, I have been referred to the remarks of Kirby P in Spedley and to the judgments in Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 in which the doctrine is acknowledged, although at least in some of the judgments with the limitation that it cannot be applied to give rise to positive and substantial injustice.

42. In the light of these principles, I do not think that there is anything in the previous proceedings involving Mr. Eastman in which I have sat or in the handling by me of the various complaints made by Mr. Eastman outside the courtroom to give rise to the possibility that a fair-minded observer with knowledge of the material facts (of which there are many) might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the determination of any issue that I can see arising as a reasonable possibility in Mr. Eastman's coming trial. In particular I do not see that the reasonable observer might conclude that I might have prejudged any issue that might possibly arise. It is relevant to add that this extends to my capacity to deliver the impartial summing-up to which Mr. Eastman is entitled. The possibility of the reasonable observer coming to such a conclusion, if that possibility exists, is remote, speculative and outweighed by the "necessity" in the public interest of having the issue of the accused's guilt or otherwise in relation to the offence charged being determined by a jury in a trial according to law. The case is before the Court. The only two Judges to whom I might direct the case are themselves disqualified. All additional Judges reside interstate and as a result of my inquiries I am satisfied that none is available and none is likely to be available for the trial which is estimated to last many months.

43. Having rejected the submission previously made on Mr. Eastman's behalf that I should disqualify myself for apparent or ostensible bias, I turn to Mr. Eastman's own contention that I am in fact biased. Of course, human nature being what it is, the last person who should decide whether a judge is guilty of actual bias is that judge. But the decision has to be made. Nothing needs to be added to what I have already said for me to come to a conclusion, stepping back as far as I can and disregarding Mr. Eastman's own feelings as I must. I consider that I have not displayed bias and prejudice towards Mr. Eastman and that I do not expect to do so in the forthcoming trial.

44. For those reasons I declined to disqualify myself from presiding over the trial.