Eastman v The Honourable Jeffrey Allan Miles [2006] ACTSC 49 (27 April 2006)

Last Updated: 22 May 2006

DAVID HAROLD EASTMAN v THE HONOURABLE JEFFREY ALLAN MILES [2006] ACTSC 49 (27 April 2006)

ADMINISTRATIVE LAW - PRACTICE AND PROCEDURE - oral application for mandatory injunction against non-party who was not present - injunction not granted - lack of fairness to party not present.

CRIMINAL LAW - power to order prisoner remain in ACT on warrant to enable administration of justice.

Crimes Act 1900, s 475

Administrative (Decisions Judicial) Review Act 1989

Removal of Prisoners Act 1968 (ACT), s 3, s 5(1), s 6

Crimes (Administration of Sentences) Act 1999 (NSW), s 44(5)

Eastman v Minister for Corrective Services [2004] ACTSC 33; (2004) 181 FLR 447

No. SC 853 of 2005

Judge: Lander J

Supreme Court of the ACT

Date: 27 April 2006

IN THE SUPREME COURT OF THE )

) No. SC 853 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Applicant

AND: THE HONOURABLE JEFFREY ALLAN MILES

Respondent

THE ATTORNEY GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

ORDER

Judge: Lander J

Date: 27 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The oral application that Mr Eastman be allowed to remain at Belconnen Remand Centre until either 25 May 2006 or 10 July 2006 be dismissed.

2. The applicant file and serve any notice of motion seeking any orders of any kind against the respondent by 11 May 2006.

3. The applicant file and serve any notice of motion seeking to join any party, including the New South Wales Commissioner for Corrective Services, to these proceedings by 11 May 2006.

4. The applicant file and serve any notice of motion seeking any relief against any person that the applicant seeks to join as a party, including the New South Wales Commissioner for Corrective Services, by 11 May 2006.

5. That the further directions hearing be adjourned until 11.00 am on 25 May 2006.

6. Pursuant to s 54 of the Court Procedures Act 2004 (ACT) the contents and the evidence contained in the affidavit of David Harold Eastman affirmed on 26 April 2006 (the Eastman affidavit) in the within action be suppressed from publication save and except that:

a. The New South Wales Commissioner for Corrective Services (the Commissioner) may publish the contents of and the evidence contained in the Eastman affidavit to his solicitors and counsel for the purpose of defending these proceedings.

b. The Commissioner's solicitors may publish the contents of and the evidence contained in the Eastman affidavit to any of the persons named in the Eastman affidavit for the purpose of obtaining instructions in defending these proceedings.

7. The trial of this action is set for 10 July 2006.

1. 1. This matter was called on yesterday, on 26 April 2006, for directions. The applicant's principal proceedings are for judicial review of a decision made by the respondent under s 475 of the Crimes Act 1900 ("the Act") in which, in a report, he recommended that the executive take no action to set aside the applicant's conviction on 3 November 1995 for the murder of Colin Winchester on 10 January 1989.

2. The applicant, Mr Eastman, was convicted of murder and following upon his conviction on 3 November 1995, the applicant was sentenced to imprisonment for life. The respondent's inquiry under s 475 of the Act was as to whether the applicant was at the time of his trial fit to plead. If the inquirer, that is, the respondent, was of that opinion, consequential matters needed to be addressed.

3. Prior to yesterday, there had been two directions hearings. At both hearings Mr Eastman was represented by counsel; on the first occasion by Ms Walker, junior counsel, and on the second by Mr Hanks, senior counsel.

4. Immediately before the second directions hearing on 22 March 2006, the applicant by his solicitors, Deacons, filed an amended application. The amended application raises four grounds. First, that the respondent did not have jurisdiction to make the decision. Secondly, the making of the decision was an improper exercise of the power conferred by s 475 of the Act in that the respondent took into account an irrelevant consideration in the exercise of the power. Thirdly, the decision involved an error of law. Fourthly, a breach of the rules of natural justice occurred in connection with the making of the decision. Each of the grounds to which I have referred are particularised and of course each of the grounds to which I have referred are complaints of error of law.

5. The application relies upon the Administrative (Decisions Judicial) Review Act 1989 (ACT) and on the jurisdiction of the Court generally to grant prerogative relief. It can be seen from the particulars, which I will not presently recite, that there are no further facts which need to be examined to determine whether or not the complaints made in the particulars and the four grounds to which I referred can be made out.

6. The applicant is presently serving his sentence of imprisonment in Goulburn Correctional Centre in New South Wales. There are no jails in the Australian Capital Territory for persons serving sentences of imprisonment. There is a remand centre at Belconnen. Sentenced prisoners in the Australian Capital Territory serve their time in New South Wales pursuant to the Removal of Prisoners Act 1968 (ACT) which was first enacted by the Commonwealth, but became a law of the Australian Capital Territory from 11 May 1989. Section 5(1) of that Act provides:

Where, under a law as in force in the ACT, a person is liable to undergo imprisonment or other detention in custody, an authorised person may, by warrant directed to all constables, require them to convey that person in custody from the ACT to such prison in the State as is specified in the warrant and they are to deliver him or her into the custody of the officer in charge of the prison or some other officer doing duty at the prison, and the warrant may be executed by any constable.

7. There is a corresponding New South Wales enactment, the Crimes (Administration of Sentences) Act 1999 (NSW), which allows the New South Wales institutions to accept and keep in custody prisoners sentenced in the Australian Capital Territory. Section 44(5) of that Act provides for ACT prisoners to be dealt with as if the prisoner's sentence was a sentence passed under a law in New South Wales.

8. Section 6(1) of the Removal of Prisoners Act 1968 provides a power to an authorised person to issue a warrant to the person in charge of a New South Wales prison to compel that person to convey an ACT prisoner to the Australian Capital Territory. The provision reads:

Where a person is being detained in a prison in the State under this Act, an authorised person may issue a warrant requiring the person in charge of the prison to deliver the firstmentioned person into the custody of a constable and requiring the constable into whose custody the person is so delivered to convey him or her in custody to the ACT.

9. Subsection (2) of s 6 provides:

A person returned to the ACT under a warrant referred to in subsection (1), shall be held in custody by the constable, some other constable, or in a remand centre until released or returned to the State, in accordance with law.

10. Subsection (3) of s 6 provides:

So long as a person returned to the ACT under a warrant under subsection (1) continues to be liable to be kept in custody by virtue of the order or sentence by reason of which he or she was conveyed to the State, the constable executing the warrant, any other constable or the person in charge of the remand centre, as the case requires, may keep the person in custody in the ACT, and that constable or person in charge may return the person in custody to the prison in the State, where he or she shall again be received into custody and dealt with as if he or she had not been returned to the ACT.

11. The important words in subsection (3) of s 6 are "so long as a person returned to the ACT under a warrant ... continues to be liable to be kept in custody by virtue of the order or sentence by reason of which he or she was conveyed".

12. It is therefore the warrant which will determine whether the person in charge of the remand centre in the ACT is entitled to keep the ACT prisoner, who has been returned to the ACT, in custody in the ACT. An authorised person is defined in s 3 of the Removal of Prisoners Act 1968 to mean:

(a) the sheriff or a deputy sheriff of the Territory; or

(b) a magistrate; or

(c) the registrar or a deputy registrar of the Supreme Court or the Magistrates Court; or

(d) the chairperson, a deputy chairperson or the secretary of the sentence administration board established under the Rehabilitation of Offenders Interim Act 2001; or

(e) a sheriff registrar, deputy registrar, district registrar or similar officer of a Federal Court.

13. There are other provisions of the Removal of Prisoners Act 1968 which do allow prisoners to be removed in certain circumstances, but those provisions in ss 6A and 7 are not relevant to the matter which is under consideration today.

14. Mr Eastman has been brought to this Court and on all three directions hearings from the Goulburn Jail and kept in the Belconnen Remand Centre whilst attending Court. He has been brought, as I understand it, under the authority of a warrant issued by the Registrar of the Supreme Court. As already observed, the Registrar is an authorised person for the purpose of s 3 of the Act and therefore entitled to issue a warrant to a person in charge of a prison to deliver an ACT sentenced prisoner to the ACT. Those warrants, and there have been three of them as I understand it, were no doubt issued by her so as to allow Mr Eastman to be present and to witness the directions hearings.

15. At the end of the previous two directions hearings Mr Eastman was returned to a prison in New South Wales. He has been brought to these proceedings yesterday on a third warrant issued by the Registrar.

16. When the matter came on yesterday Mr Eastman was represented by a solicitor who told the Court that he had not been able to obtain instructions from his client because Mr Eastman had been held in jail in accommodation where he could not receive or write letters and could not retain any papers.

17. He drew the Court's attention to a letter which had been written to the Court on 12 April, the contents of which were:

We refer to the previous Directions Hearing in this matter on 22 March 2006. On that occasion we were invited to raise any difficulties we were having in obtaining instructions from our client with the Court. We now wish to do this.

Our client has instructed us that he is no longer permitted to keep correspondence in his cell at Goulburn Correctional Centre. Rather, staff have requested that he open his mail, read it, and return the opened letter to them. Mr Eastman is reluctant to comply with this procedure. Additionally, Mr Eastman's inability to keep his correspondence in the cell means that he cannot give due consideration to draft documents, and that he must provide instructions based on his memory of the document.

Mr Eastman's inability to have full access to his correspondence has hindered our obtaining instructions in respect of the filing of at least one application. It is also making it more difficult to keep Mr Eastman informed of the progress of events, and seek his instructions in respect of ongoing matters, for example obtaining evidence.

We feel that it is important to advise the Court of our ongoing difficulties in obtaining instructions, in case this becomes a matter of significance at a later date. We note that we may also raise the matter before the Court at the Directions Hearing on 26 April 2006.

18. Later, during the hearing, the solicitor submitted to the Court that his instructions were that the person in charge of the Goulburn Correctional Centre was in contempt of this Court by preventing or hindering Mr Eastman in giving instructions.

19. Later during the submissions made that day the solicitor made an application for what amounted to a mandatory injunction. He sought orders first, that Mr Eastman be removed from unit 6 and be placed into a similar cell as that which he was in prior to 3 February when he was placed in the isolation unit; and secondly, an order that no employee or agent of the Commissioner acts or behaves in a manner calculated or likely to have a consequence of interfering with these proceedings.

20. I indicated to Mr Eastman's solicitor yesterday that I would not make orders of the kind sought without a formal application being made and notice of that application being given to the person against whom the orders were sought.

21. I indicated that any application should indicate what jurisdiction was sought to be invoked, and in particular whether the application was made under the contempt power of the Court or whether the application was simply for a mandatory injunction of the kind which was orally identified by Mr Eastman's solicitor.

22. I indicated that I would give time to Mr Eastman's solicitor to consider those matters, approach counsel, and to bring whatever application needed to be brought in support of the matters addressed in his oral submissions. I therefore adjourned yesterday's directions hearing until today so that any application that needed to be brought could be brought. I directed that any notice of motion that was to be brought ought to be filed and notice given to the party against whom the orders were sought by 4.30 pm yesterday.

23. The notice of motion was filed by facsimile before 4.30 pm as directed and sought the following orders:

(1) That the New South Wales Commissioner for Corrective Services (the Commissioner) and any duly authorised officer or delegate having dealings with the Plaintiff be injuncted from engaging in any conduct which is calculated or has the effect of hindering the due administration of justice by this Court;

(2) That the Commissioner remove the Plaintiff from Unit 6 and place him in a normal cell or in some other part of Goulburn Gaol with all the personal property, access to facilities and privileges that he had on 3 February 2006 prior to being moved to Unit 6;

(3) That the Motion be heard ex parte;

(4) Any other such orders that the Court considers appropriate.

24. The notice of motion was accompanied by a document in the form of an affidavit which was at that time unsworn. It was clearly intended that the affidavit would be sworn by Mr Eastman, and as events have occurred it was so sworn.

25. The notice of motion is brought in the principal proceedings which are for judicial review of a decision made by the respondent, former Chief Justice Miles. The orders sought in the notice of motion are against a person, not a party and who is not resident in the Australian Capital Territory, and does not discharge any duties in the Australian Capital Territory. The orders sought are for a mandatory injunction, the form of which would be to require the Commissioner to place the applicant in a normal cell or in some other part of Goulburn Correction Centre apart from that part of the prison where he is presently being held.

26. It may be observed that the contempt power of the Court is not sought to be invoked in the notice of motion. The only power which is sought to be invoked is the general power of the Court to make injunctions pursuant to its equitable jurisdiction.

27. The matter came on again this morning. At that time the solicitor handed up an amended notice of motion which only sought to amend paragraph 1 of the notice of motion but, for completeness, I will identify the amendment. The first order now sought in the amended notice of motion is:

(1) That the New South Wales Commissioner for Corrective Services (the Commissioner) and any duly authorised officer or delegate having dealings with the Plaintiff be injuncted from engaging in any conduct which is calculated or is likely to have the effect of hindering the plaintiff's preparation for and participation in these proceedings and the due administration of justice by this Court.

28. The second order remained as in the first notice of motion.

29. When that amended notice of motion was handed up to the Court, the applicant's solicitor also handed up the affidavit duly affirmed by Mr Eastman. Shortly after the amended notice of motion was received, I raised with Mr Eastman's solicitor whether he recognised that there were fundamental flaws in the applicant's application. First, the party against whom the orders are sought is not a party to the proceedings. Secondly, the application seeks two mandatory injunctions as set out in paragraphs 1 and 2 in circumstances where it is contemplated the party, not a party to the proceedings, would not be heard. Thirdly, the affidavit which supports the notice of motion rather suggests that the conduct which is complained of had at least commenced on 3 February 2006 and continued until Mr Eastman was removed from the Goulburn Correctional Centre by the warrant issued by the Registrar a few days ago.

30. In all of those circumstances, it appeared to me that there was no prospect of any mandatory injunction being made in the terms of the orders sought in either the original notice of motion or the amended notice of motion. Clearly enough, fairness required the Commissioner to be entitled to be heard on such far-reaching orders.

31. However, I raised another matter with the solicitor and that was whether I had jurisdiction as an additional judge of the Supreme Court of the ACT to make the orders sought in paragraphs 1 and 2 of the amended notice of motion when the applicant was not seeking to invoke the contempt power of the Court. During his submissions, I offered a suggestion as to how the proceedings might continue. I suggested that the trial of the principal proceedings, which as I have noted relate to the consideration of four points of law as disclosed in the amended application, be held on 10 July. I made that offer on the basis that there does not appear to me to be any need for any additional evidence. Indeed, Mr Hanks, who appeared on the last occasion, did not suggest there was any need for any further evidence. I think, although it is a little less clear, that Mr Eastman's solicitor today also agreed that no additional evidence was necessary.

32. I also offered, as part of the timetable, that I would set aside 25 and 26 May to hear any application of any kind which was regularly brought, and of course for which I had jurisdiction and which had been served on the party against whom the orders were sought in the application. That offer was made on the basis that it would allow the present amended notice of motion to be served on the New South Wales Commissioner for Corrective Services, and at the same time an application be made to join him as a party to these proceedings. That would allow him to be heard in the proceedings, if in fact he wished to be heard, and he could address the question of jurisdiction, the question of power and the facts as identified in Mr Eastman's affidavit.

33. The solicitor replied, after obtaining instructions from his client, after I had adjourned the Court to enable him to do so, that his instructions were that Mr Eastman would agree to a timetable of the kind if Mr Eastman were permitted to remain in Belconnen Remand Centre between now and 10 July. I mentioned to this solicitor that I doubted whether I had power to make that order. In response to that retort, Mr Eastman's solicitor applied to have all matters adjourned sine die, including both the principal relief and the amended notice of motion. I refused that application because there was no basis upon which the matters ought to be left without being resolved.

34. Immediately after I refused that application, Mr Eastman discharged his solicitor and withdrew his retainer and told me that he would act for himself. He then commenced to speak generally about matters apparently which concerned him. I asked him to identify the application he wished to make to the Court. He made an oral application that he be allowed to remain in the Belconnen Remand Centre until 10 July. I asked him to speak to that application and he did, at length. A lot of what was put to me was not relevant to that application but I listened to it in any event. He mainly complained of my failure to protect the integrity of the Court processes by failing to make orders of the kind sought in the amended notice of motion. He complained that I would not treat the respondent, the Attorney-General, in the same way that I treated him.

35. I can only exercise the jurisdiction of a judge of the Supreme Court of the Australian Capital Territory sitting in this Court. The power which I exercise is not at large but is constrained by jurisdiction and, if within jurisdiction, is further constrained by fairness. Even if the amended application did not have the procedural flaws to which I have referred, I would not make the orders sought without first giving the party against whom the orders were sought an opportunity to be heard. That is why I suggested the timetable.

36. The allegations which are made against the Commissioner and the Commissioner's staff are so serious that fairness required me to allow them to be heard before any finding of the kind sought by Mr Eastman could be made. It is alleged, as the solicitor said yesterday, that Mr Eastman is being held in his present accommodation so as to hinder these proceedings. That is a very serious allegation and an allegation which a responsible public servant is entitled to be heard upon before an order is made adverse to him or to her.

37. It is not only Mr Eastman who is entitled to expect justice in this Court. Anyone who might be adversely affected by any order of the Court is entitled to be heard and to put his or her evidence to the Court for consideration and to argue against the making of any orders. That, again, is why I suggested the timetable to which I have referred. That would allow Mr Eastman's legal advisors an opportunity to reflect on the procedural flaws to which I have referred and an opportunity to approach the Court identifying the jurisdiction which they wish the Court to exercise; to apply to join the Commissioner as a party; and to serve the Commissioner so that on 25 May the Commissioner could be brought before the Court to answer all of those matters.

38. If Mr Eastman's application were successful on 25 May, and I am not suggesting whether it would or not be successful, that would allow Mr Eastman to instruct his solicitors in the six weeks between that date and 10 July. However, as I have said, Mr Eastman's solicitor said that my proposal put during argument was not acceptable to him.

39. I shall therefore rule on his oral application which, as I have stated, was first to be allowed to remain in the Belconnen Remand Centre until 10 July. During his submissions, and more particularly in his submissions in reply, Mr Eastman said that I had misunderstood the application which he had made and the order which he sought, and what he wanted was that I do whatever will produce the result that the applicant be kept at the Belconnen Remand Centre until 25 May.

40. The question of ordering the removal of a prisoner under a sentence of a court in the ACT, serving that sentence in New South Wales to the ACT was considered by Gray J in Eastman v Minister for Corrective Services [2004] ACTSC 33; (2004) 181 FLR 447 in a judgment delivered on 25 May 2004.

41. After discussing the legislation to which I have referred and other legislation which is not relevant in this consideration, his Honour considered the power available to an authorised officer, or the power of the Court to direct an authorised officer, to issue a warrant for the return of a prisoner under sentence to the Australian Capital Territory. His Honour said in [22] of his reasons:

Likewise, if a power exists to direct an authorised officer to issue a warrant for the return to the ACT of a prisoner under sentence, it can only be where there was a necessity for such return to facilitate the proper administration of justice. In Milat v The Queen [2004] HCA 17; (2004) 205 ALR 338 at 340 [11], McHugh J, in considering the applicant's request for an order that he be brought before the court to conduct his application for special leave to appeal, said -

As at present advised, I do not think this Court has any power to order the Government or Comptroller or any officer of a prison to bring a prisoner, serving a sentence, before the Court merely because the prisoner wishes to present oral argument to the Court in a special leave application. If the Court has power to make an order bringing a serving prisoner to the court to present oral argument, it can only arise by necessity when the circumstances are such that to deny the power to do so would thwart the exercise of the jurisdiction of this Court.

The comments made by McHugh J emphasise the sort of restraint that this court should exercise before authorising the return of a prisoner under sentence which s 6 of the Removal of Prisoners Act 1968 would permit. In my view, in those cases where this court considers that it is necessary in the interests of the administration of justice for a prisoner to be returned to the ACT for the purposes of a proceeding before it, the court may direct the Sheriff or Registrar of the court to issue a warrant for that action, but the direction should be limited to that purpose.

42. I agree with respect with Gray J's reasons. In particular, I agree that if this Court believed it was necessary in the interests of the administration of justice to direct that a sentenced prisoner be returned to the ACT for the purpose of a proceeding before it the Court has that power and, if it was of that opinion, would exercise that power.

43. In this case, Mr Eastman asked me to exercise that power or a like power so that he may be incarcerated in the Belconnen Remand Centre at least until 25 May when, on the timetable which I have suggested, a further directions hearing would be held when I would enquire into the orders sought in Mr Eastman's notice of motion and enquire into the facts which are said to support that notice of motion in Mr Eastman's affidavit.

44. However, to make the order sought by Mr Eastman would be to assume the result. That would be to assume that it is already in the interests of the administration of justice to make the order sought. In my opinion, that would be inappropriate. In my opinion, for the reasons I have already given, I should not exercise any power which might reflect or impact on the Commissioner for Corrective Services until such time as the Commissioner has had a proper opportunity to respond to the claims made in the affidavit supporting the amended notice of motion filed in Court today.

45. Mr Eastman, of course, argued that he could not prosecute the amended notice whilst he remains in Goulburn Correctional Centre. I am not persuaded that that is so. In my opinion, Mr Eastman's solicitor could do what I suggested they do and that is to observe the proper procedure in relation to applications of the kind so that the matters contained in the affidavit of Mr Eastman could be examined on 25 May. Mr Eastman could, at that time, give whatever evidence was necessary in support of the orders sought.

46. Of course, all that assumes that I have jurisdiction to make the orders sought and that is not a matter which I have yet considered.

47. It follows that whilst I agree that there is power in this Court to direct that Mr Eastman be brought to the Belconnen Remand Centre if it be in the interests of the administration of justice, I am not satisfied that that power should be presently exercised and I am not satisfied that that power should be exercised until I have had an opportunity of considering the allegations made in Mr Eastman's affidavit, which should be after the Commissioner for Corrective Services is served with an application to be joined in the proceedings and the amended notice of motion.

48. I am reinforced in that view because Mr Eastman's affidavit discloses that the conduct complained of has been carried on since 3 February 2006. Also, the affidavit suggests that there has been like conduct since 2001. In those circumstances, there is no reason why an inquiry of the kind that I have mentioned could not take place on 25 May.

49. I have mentioned that the notice of motion was accompanied by an affidavit affirmed by Mr Eastman. The affidavit contains a number of very serious allegations against the Commissioner and officers at the Goulburn Correctional Centre. Those officers are identified in the affidavit. They should be given an opportunity of answering the allegations made against them before the allegations are made public. In those circumstances I intend to exercise the power given to me under s 54 of the Court Procedures Act 2004 (ACT) to make an order for suppression.

50. I make the following orders:

(1) The oral application that Mr Eastman be allowed to remain at Belconnen Remand Centre until either 25 May 2006 or 10 July 2006 be dismissed.

(2) The applicant file and serve any notice of motion seeking any orders of any kind against the respondent by 11 May 2006.

(3) The applicant file and serve any notice of motion seeking to join any party, including the New South Wales Commissioner for Corrective Services, to these proceedings by 11 May 2006.

(4) The applicant file and serve any notice of motion seeking any relief against any person that the applicant seeks to join as a party, including the New South Wales Commissioner for Corrective Services, by 11 May 2006.

(5) That the further directions hearing be adjourned until 11.00 am on 25 May 2006.

(6) Pursuant to s 54 of the Court Procedures Act 2004 (ACT) the contents and the evidence contained in the affidavit of David Harold Eastman affirmed on 26 April 2006 (the Eastman affidavit) in the within action be suppressed from publication save and except that:

(a) The New South Wales Commissioner for Corrective Services (the Commissioner) may publish the contents of and the evidence contained in the Eastman affidavit to his solicitors and counsel for the purpose of defending these proceedings.

(b) The Commissioner's solicitors may publish the contents of and the evidence contained in the Eastman affidavit to any of the persons named in the Eastman affidavit for the purpose of obtaining instructions in defending these proceedings.

(7) The trial of this action is set for 10 July.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date: 19 May 2006

Counsel for the applicant: Mr Sharman (for part of the hearing)

Solicitor for the applicant: Deacons

Counsel for the respondent: Mr Harris SC

Solicitor for the respondent: Meyer Vandenberg

Counsel for the intervenor: Mr Mossop SC

Solicitor for the intervenor: ACT Government Solicitor

Date of hearing: 27 April 2006

Date of judgment: 27 April 2006