Eastman v The Honourable Jeffrey Allan Miles [2007] ACTSC 27 (9 May 2007)

Last Updated: 7 May 2008

DAVID HAROLD EASTMAN v THE HONOURABLE JEFFREY ALLAN MILES [2007] ACTSC 27 (9 May 2007)

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1989 (ACT) - whether report of an inquiry under s 475 Crimes Act 1900 (ACT) is a "decision" to which the Administrative Decisions (Judicial Review) Act applies - nature of inquiry under s 475.

JUDICIAL REVIEW - Supreme Court Act 1933 s 34B - whether writ of certiorari may issue to quash report of inquiry made under s 475 Crimes Act - whether order in the nature of mandamus may apply to judicial officer after expiry of judicial officer's commission.

ADMINISTRATIVE LAW - report of inquiry under s 475 of the Crimes Act into applicant's conviction for murder - respondent the author of the report - whether respondent misconceived the question that was the subject of the report - whether applicant denied procedural fairness in the conduct of the inquiry.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(3)

Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3A(2), 5

Crimes Act 1900 (ACT) ss 428E(1), 475

Legislation Act 2001 (ACT) s 147(5)

Supreme Court Act 1933 (ACT) ss 34B, 60A

ACT v Cavanagh [2004] ACTSC 107; (2004) 185 FLR 455 referred to

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 cited

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Eastman v The Queen (1997) 76 FCR 9 referred to

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 referred to

Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318 cited

Eastman v Miles [2004] ACTSC 32; (2004) 181 FLR 418 not followed

Edelsten v Health Insurance Commission (1990) 27 FCR 56 cited

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 cited

Ross v Costigan (1982) 41 ALR 319 cited

Taylor v Ansett Transport Industries and Another (1987) 18 FCR 342 cited

The Queen v Collins; Ex parte ACTU v Solo Enterprises Pty Ltd (1976) 50 ALJR 471 cited

Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 cited

No. SC 853 of 2005

Judge: Lander J

Supreme Court of the ACT

Date: 9 May 2007

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: 9 May 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 1. This is an application to review the decision of the respondent made on 6 October 2005 in which the respondent did not recommend that the Executive of the Australian Capital Territory (the ACT) take any action to set aside the applicant's conviction.

2. The application is made under both the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act) and s 34B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) under which the applicant seeks certiorari a declaration and mandamus.

3. The Assistant Commissioner of the Australian Federal Police, Colin Winchester, was shot dead on 10 January 1989.

4. On 2 May 1995 the applicant was arraigned and pleaded not guilty to the charge of murdering Mr Winchester. The applicant was tried by a jury and, on 3 November 1995, the jury returned a verdict of guilty. On 10 November 1995 Carruthers AJ sentenced the applicant to imprisonment for life.

5. On 25 June 1997 the Full Court of the Federal Court of Australia dismissed the applicant's appeal: Eastman v The Queen (1997) 76 FCR 9. The High Court granted the applicant special leave to appeal but, on 25 May 2000, dismissed the applicant's appeal to that Court: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1. During that appeal, members of the High Court raised for consideration whether the applicant was fit to plead at his trial. Gleeson CJ, Kirby and Callinan JJ referred to the availability of an inquiry under s 475 of the Crimes Act 1900 (ACT) (the Crimes Act).

6. Subsequently, Mr Eastman made an application by letter for an inquiry under s 475 of the Crimes Act into his conviction for the murder of Colin Winchester. Section 475 of the Crimes Act has been repealed but, at the relevant time, it provided:

(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.

(2) The attendance of every person so summoned may be enforced, and his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or been duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.

(3) Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the magistrate shall allow such a person to be present, and to examine any witness produced before such magistrate.

(4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the inquiry was directed by him or her, or to the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just.

7. The applicant's request was considered by the then Chief Justice, Miles CJ who heard oral submissions and gave `a ruling' on 7 August 2001. He said:

I've considered the submissions and the evidentiary material before me. The decision whether or not to direct an inquiry under section 475 is an administrative one and not a judicial one.

8. He said:

On the material before me, the present application raises the question whether that issue [the question of fitness to plead at trial] arose at the trial of David Harold Eastman. It is less clear whether an undetermined issue of fitness to plead gives rise to any mitigating circumstances.

9. He said later:

... If a person has been found guilty when an issue as to that person's fitness to plead has arisen at the trial but has not been determined according to law, then it follows that a question arises as to the finding of guilt. On the material before me the present application raises the question whether that issue arose at the trial of David Harold Eastman.

It is less clear whether an undetermined issue of fitness to plead gives rise to any mitigating circumstances. ... However, it is not necessary at this stage to consider this aspect further, since as I have already indicated I am satisfied that the material before me raises the issue of whether the question of the fitness of David Harold Eastman to plead arose at his trial. Consequently it raises also a doubt or question as to his guilt.

The next matter for consideration is whether I make an administrative decision as to whether there should be a direction that an Inquiry take place. ...

The strength of any doubt hanging over the conviction must be one factor. The cases refer to a feeling of "unease" or a "sense of disquiet" as being sufficient to justify an Inquiry. Another factor, in my view, is the likely outcome of any positive indication flowing from the Inquiry that a question as to unfitness to plead did in fact arise at the trial. The trial is over. At this time the Mental Health Tribunal clearly has no power to determine the question of fitness to plead even if it did arise at or during the trial and there is no power in the Court to order David Harold Eastman to submit to its jurisdiction.

As I have indicated, the issue which brings the case within section 475 is not whether David Harold Eastman was in fact fit to plead, but whether during his trial the question of fitness to plead arose. Should an inquiry under section 475 attempt for itself to look for an answer to the question whether David Harold Eastman was in fact unfit to plead? If it did, what were the consequences of a positive answer that David Harold Eastman was in fact unfit to plead be? It must be remembered that the inquiry under section 475 results in a report to the Executive and nothing more. The judge making the report has no power to set aside the conviction.

The Executive would have no power to act on any recommendation that the conviction be set aside. The minister would have no power to have to refer the case for determination as in an appeal as is, I understand, the case now in New South Wales under the Crimes Act and formally (sic) under the Criminal Appeal Act. The provisions do not apply in this Territory. There is however, the Executive prerogative of mercy and there may also be scope to explore section 474 of the Crimes Act.

Ultimately, at this stage, I do not consider it appropriate to consider further the effect of the outcome of any inquiry. It is enough to say that an inquiry would not be necessarily futile and that there is a prospect that it might go on the one hand to expose a serious injustice, or on the other it might go to clear any doubt and resolve any question as to David Harold Eastman's guilt as contemplated by section 475.

I therefore propose to direct the chief magistrate, or a magistrate nominated by him to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial for the murder of Colin Winchester. I propose also to direct the magistrate concerned to consult me as to the identity of persons likely to give that material information and to consult generally as to the procedure to be followed in the inquiry.

10. There appears then a Record of Proceedings of 7 August 2001 under the heading of `Order' the following:

Direct the Chief Magistrate, or a Magistrate nominated by him, to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial for the murder of Colin Winchester.

Direct also that the Magistrate concerned consult me as to the identity of persons likely to give material information and generally as to the procedure to be followed in the Inquiry.

Request the Attorney-General to provide independent counsel to be instructed by the Registrar of the Supreme Court or of the Magistrates Court for the purpose of assisting the Inquiry.

Direct that the Registrar send a copy of the transcript of this morning's proceedings to David Harold Eastman as well as a copy of the report of Dr James Smyth Wallace.

Chief Justice will convey his directions to the Chief Magistrate.

11. On the same day, in a letter written to Mr R Cahill, the Chief Magistrate of the ACT, Miles CJ wrote:

CHIEF JUSTICE'S CHAMBERS

SUPREME COURT OF THE A.C.T.

LAW COURTS BUILDING

CANBERRA CITY, A.C.T. 2601

7 August 2001

Mr R Cahill

Chief Magistrate

Magistrates Court

CANBERRA ACT 2600

Dear Mr Cahill

Application by David Harold Eastman for Inquiry

under Section 475 of the Crimes Act 1900

David Harold Eastman has made application for an Inquiry under s 475 of the Crimes Act 1900 into his conviction for murder on 3 November 1995.

I am of the view that a question or doubt arises as to his guilt. The question is whether the question of fitness to plead arose at his trial.

I therefore direct you, or a Magistrate nominated by you, to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial.

I request that you, or the Magistrate nominated, consult me as to the identity of persons likely to give material information and generally as to the procedure to be followed in the Inquiry.

I have requested the Attorney-General to provide independent counsel to be instructed by the Registrar of the Supreme Court or of the Magistrates Court for the purpose of assisting the Inquiry. This is a matter which I suggest be the subject of consultation between yourself and myself at a later stage.

Yours sincerely,

[signed]

CHIEF JUSTICE

12. The Chief Magistrate nominated Mr Pike SM, who conducted directions hearings in preparation for his examination of persons likely to give information but, before that hearing got underway, proceedings were brought in the Supreme Court by the Director of Public Prosecutions who challenged the holding of the inquiry. That challenge was dismissed by the High Court on 28 May 2003: Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318.

13. Later, the applicant also challenged aspects of the inquiry by seeking judicial review of certain actions taken by the respondent in the direction given to the magistrate pursuant to s 475: Eastman v Miles [2004] ACTSC 32; (2004) 181 FLR 418. Those proceedings were dismissed by Gray J on 25 May 2004.

14. Subsequently, Mr Pike's commission expired and it was necessary for the Chief Magistrate to nominate another magistrate to undertake the gathering of evidence under s 475 of the Act. Mr Cavanagh SM was nominated by the Chief Magistrate as the person to conduct that aspect of the inquiry. A challenge was later made to a ruling by Mr Cavanagh made on 11 October 2004 in which he refused leave to the Crown to appear in the inquiry but that application was dismissed: ACT v Cavanagh [2004] ACTSC 107; (2004) 185 FLR 455. Mr Cavanagh SM examined persons on oath between 11 October 2004 and 4 February 2005.

15. Miles CJ's commission as a Judge of this Court expired but he was appointed an acting Judge. He received written submissions and heard oral submissions on 12 and 13 May 2005. On 6 October 2005 Miles CJ reported. He concluded at [278]:

As it has not been shown that Mr Eastman was unfit to plead during the whole of his trial or during any part of it, or that an unresolved question as to his fitness resulted in a miscarriage of justice, I do not recommend that the Executive take any action to set aside Mr Eastman's conviction.

16. On 17 November 2005 the applicant commenced these proceedings himself. In the initiating proceedings the grounds of the application were:

1. That procedures that were required by law to be observed in connection with the making of the decision were not observed;

2. That the person who purported to make the decision did not have jurisdiction to make that decision; and

3. That the decision involved errors of law.

17. On 24 November 2005 the respondent filed a submitting appearance.

18. On 13 February 2006 the matter came on before me when the applicant was represented by a barrister, Ms Walker; the respondent by Mr Harris SC; and Mr Mossop appeared for the Attorney-General of the ACT who intervened in the proceedings pursuant to s 19 of the ADJR Act. The matter was adjourned until 22 March 2006. At that time, the applicant was represented by senior counsel, Mr Hanks QC, who advised the Court the applicant had instructed his legal representatives to commence proceedings for a review of the decision of the Executive which was said to have been made as a consequence of the decision of the respondent. Those other proceedings were duly commenced and heard immediately after these proceedings. I will publish my reasons for decision in that application immediately after making the orders in the matter: Eastman v The Attorney-General [2007] ACTSC 28.

19. A number of interlocutory applications were made in these proceedings which are irrelevant in a consideration of this application. The applicant was sometimes represented and sometimes appeared on his own behalf.

20. On 22 February 2006 the then Attorney-General Mr Stanhope wrote to the applicant:

I refer to my letter of 7 December 2005.

The Executive has fully considered the report of the Honourable Jeffrey Allan Miles. His Honour found that:

1. there was no miscarriage of justice in your trial; and

2. it was not shown that it was likely that you were unfit to plead.

Accordingly, the Executive is taking no further action in connection with the matter of your fitness to plead.

It is that decision which is challenged in Eastman v The Attorney-General.

21. When the matter came on for hearing the applicant was represented by counsel. At that hearing the applicant sought and obtained leave to file a further amended application for order of review. During the hearing of the application the applicant terminated his legal representative's instructions and thereafter put his own contentions and arguments to the Court. Mr Eastman put his submissions articulately. I was further assisted by the written submissions which had been prepared by senior and junior counsel who had previously represented Mr Eastman and who were unable to appear at the hearing. I have had regard to those submissions in addition to the oral submissions made by Mr Eastman's counsel at the hearing and Mr Eastman's own submissions.

22. On the second day of the hearing the applicant sought and obtained leave to add particulars to that amended application.

23. The grounds of the application in its final form (without the particulars in the application) are:

1. The Respondent did not have jurisdiction to make the decision.

2. 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 power.

3. The decision involved an error of law.

4. A breach of the rules of natural justice occurred in connection with the making of the decision.

24. The applicant sought the following orders:

1. An order setting aside those parts of the decision in which the Respondent found that the Applicant was in fact fit to plead throughout his trial.

1A. An order setting aside those parts of the decision in which the Respondent concluded that an unresolved question of the Applicant's fitness to plead on the morning of 22 May 2005 did not result in a miscarriage of justice.

1B. An order setting aside those parts of the decision in which the Respondent did not recommend that the Executive take any action to set aside the Applicant's conviction.

2. An order declaring that the Respondent:

(a) having found that the Federal Court, if it had known all the circumstances, would have been likely to find that there was an unresolved question of the Applicant's fitness to plead at trial, and consequently would have set aside the Applicant's conviction;

(b) should have proceeded to find that the doubt or question as to the Applicant's guilt identified by him at the beginning of the inquiry had been confirmed, and should have recommended that the Executive, in order to dispose of the matter in a just manner, take action to set aside the Applicant's conviction.

3. Alternatively, an order referring the matter to which the decision relates to the Respondent for further consideration according to law and subject to such directions as the Supreme Court thinks fit.

4. Such further or other orders as the Court thinks appropriate.

5. Costs.

25. In Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30, the issue was whether s 475 of the Crimes Act 1900 (NSW) (which was in similar terms to s 475 of the Crimes Act) authorised the institution of judicial proceedings to direct a Justice to conduct an inquiry under s 475. Hope JA (with whom Samuels JA agreed) held that a decision of a judge not to direct an inquiry under s 475 of the Crimes Act 1900 (NSW) was administrative in nature and that judicial proceedings could not be instituted to summons the Court to give a direction pursuant to s 475.

26. In the course of his reasons, Hope JA said (at 47-48):

One basis of the plaintiff's submission is that there is a difference in kind between the action of the Governor and his advisers under the section, and that of the Court. It is conceded that the Governor's action is administrative. On the other hand it is submitted that action by the Court under the section is judicial, or possibly that it may be administrative in some cases and judicial in others, depending upon how the relevant information reaches or is put before the Court. I will go into authority later, but apart from authority the language of the section, in my opinion, does not support this differentiation between the actions of Governor and Court. ...

As it seems to me, the nature of the basis for directing an inquiry points most strongly to the direction being an administrative act. It would seem to be extraordinary if the section, while emphasising that the Court must act of its own motion, required or authorised a judicial hearing (with all that would follow including, I would think, evidentiary restrictions) to enable the Court to determine whether it felt such an "unease" about the conviction or sentence that it should direct a justice of the peace to hold a judicial inquiry to decide what the facts truly were and to report upon whether that unease was justified. The whole purpose and language of the section, in my opinion, denies a construction leading to such a result.

Where the Supreme Court has given the direction for an inquiry, its role under s 475 does not stop there. After the inquiry the justice transmits the depositions and his report as to the conclusions to be drawn therefrom to the Supreme Court. The Supreme Court then makes a report upon the matter which it transmits, presumably with the depositions and the report of the justice, to the Governor. The matter is then disposed of as to the Governor, on the report of the Supreme Court, shall appear to be just. It has not been suggested that this second leg of the role of the Supreme Court, the making of the report, should be the subject of a further judicial proceeding (with or without a further right of appeal). It is nonetheless an important part of the Court's role, which in a particular case could be critical to and indeed determinative of the ultimate result to the convicted person.

27. Hope JA concluded that the decision by a judge to give (or not give) a direction to conduct an inquiry `was clearly not a judicial act; it was an administrative act' (at 49).

28. In Eastman v Director of Public Prosecutions, Heydon J (with whom Gleeson CJ, Kirby, Hayne and Callinan JJ agreed) said that the decision of Miles CJ that there was a doubt about the applicant's fitness to plead was an administrative decision: [124].

29. Heydon J's reasons in Eastman v Director of Public Prosecutions and Hope JA's reasons in Varley v Attorney-General in and for the State of New South Wales indicate that a decision to direct a magistrate to conduct an inquiry pursuant to s 475 of the Crimes Act is an administrative decision. It is in that context which the applicant's contentions must be addressed.

30. The application raises two questions which are relied upon for the relief sought. Those questions are:

1. Did the respondent misconceive the question that was the subject of the report and thereby fall into jurisdictional error, or fail to take into account a relevant consideration or commit an error of law?

2. Did the respondent deny the applicant procedural fairness in the conduct of the inquiry that led to the report?

31. Before addressing those two questions, however, a preliminary question must be addressed.

32. The intervenor submitted that a report made under s 475(4) of the Crimes Act is not a `decision' for the purposes of the definition of a `decision to which this Act applies' under the ADJR Act. It was contended that the report merely involves the provision of information and opinion to the Executive but itself decides nothing. No decision in fact is made. The intervenor's submission and other issues requires a consideration of s 475.

33. The history of s 475 is recounted in detail in Heydon J's reasons at [64]-[75] in Eastman v Director of Public Prosecutions and also referred to in McHugh J's reasons at [8] and need not be repeated here.

34. Section 475 empowers the Executive on the petition of the prisoner or someone on the prisoner's behalf to direct a magistrate to summon on oath all persons likely to give material information on the matter suggested to raise a doubt or question as to the guilt of the prisoner. Section 475 also allows a judge of the Supreme Court on the petition of the prisoner or on the judge's own motion to direct a magistrate to summon and examine on oath all persons likely to give material information on the matter suggested.

35. The first question of construction is as to the width of the words `matter suggested'. The word `matter' is used a second time in s 475(4). The words `matter suggested' in s 475(1) must relate to the doubt or question arising as to the prisoner's guilt and that includes the curial determination of that guilt, i.e. the conviction: Eastman v Director of Public Prosecutions. The matter suggested must include the circumstances which are said to give rise to the doubt or question. The matter in s 475(4) must be the same matter into which the inquiry has been conducted by the magistrate in accordance with the direction given by the Executive or the judge. However, the matter will by then have been enlarged by the inquiry so as to allow an opinion to be expressed as to whether the doubt or question has been dispelled or confirmed. It was put by the intervenor that if the doubt or question was confirmed the `matter suggested' would include whether anything and, if so, what ought to be done about the doubt or question. I do not agree with that contention. That would mean that the magistrate would be examining persons who would give information on what should be done.

36. I think the preferable construction is that the words matter suggested relate the facts and circumstances giving rise to the doubt or question of the guilt and subsequent conviction of the prisoner. I think that is consistent with the purpose of the section which was to allow the Executive to inform itself of the possibility of a miscarriage of justice however occurring, whilst at the same time leaving it to the Executive to determine, in the exercise of its discretion, whatever remedy it thought appropriate: see Eastman v Director of Public Prosecutions per McHugh J at [8] and [22]; Heydon J at [103].

37. It was contended by the intervenor that the wider construction was supported by Wood J's observations in his "Report of the Inquiry Held Under Section 475 of the Crimes Act, 1900 Into the Convictions of Timothy Edward Anderson, Paul Shaun Alister and Ross Anthony Dunn at Central Criminal Court, Sydney, on 1 August, 1979 (1985)". Wood J said, at 81 (cited in Eastman v Director of Public Prosecutions at [111] per Heydon J):

In order to discharge my function I believe it necessary to consider and report in some detail on the new evidence and on the facts concerning any suggested error or mishap in the trial process and on its practical implications, so that the Executive may have the material needed to dispose of the matter as shall appear to it to be just.

38. I do not think that passage supports a wider construction of the words `matter suggested'. Wood J was not there addressing the direction to the magistrate but the matter upon which he had to report. Moreover, he was not there addressing the question of remedy but the practical implications of the error in the trial process and thus the conviction.

39. I am of the opinion that the `matter suggested' requires the magistrate to summon and examine anyone who can give material information on the facts and circumstances said to give rise to the doubt or question.

40. That is not to say, however, that the judge cannot in the judge's report address wider questions for the assistance of the Executive.

41. Section 475(1) empowers a judge to direct another judicial officer to do something to obtain material information.

42. Section 475(2) provides the machinery whereby the magistrate, who has been directed by the Executive or by the judge, can compel a person to attend before the magistrate for the purpose of being examined.

43. Section 475(3) requires the magistrate to allow any person who is a witness at the trial and whose character might be adversely affected to be present and to himself or herself examine any witness who is produced before the magistrate.

44. Section 475(4) provides for the manner in which the depositions taken before the magistrate are to be dealt with. Where the inquiry has been directed by a judge, the magistrate must transmit the depositions to the judge. When that has occurred `the matter shall be disposed of, as the Executive, on the report of such judge, or otherwise, shall appear to be just'. Section 475(4) contemplates that a judge will report to the Executive on the information which has been transmitted to the judge by the magistrate.

45. Where the process has been initiated by the Executive, the magistrate transmits the depositions to the Executive. Where the Executive has initiated the process, the section contemplates that no report will be received from a judge. The word `such' which qualifies judge in s 475(4) makes the reference there to the judge who has initiated the inquiry. In those circumstances, there will not be a report of a judge where the Executive initiates the process.

46. Section 475 does not provide the Executive with any power to do anything if, for example, it receives a report from a judge that identifies a miscarriage of justice. It is to dispose of the matter on the report of the judge [as] shall appear to be just. The Executive could not, of course, quash the conviction, at least not by executive action. It could grant a free or conditional pardon or release the prisoner on licence: Eastman v Director of Public Prosecutions per McHugh J at [8]. The paradox of pardoning an innocent person is adverted to by Heydon J in Eastman v Director of Public Prosecutions at [98]. The Executive could also introduce a Bill into the Assembly for the purpose of `overturning the conviction and providing for the further disposition of the matter': Heydon J at 349.

47. The main purpose of the section when the process is initiated by a judge is to obtain all the information on the doubt or question and provide a report to the Executive so that the Executive might know whether a miscarriage of justice has or might have occurred. There is an ancillary purpose where the inquiry is into a mitigating circumstance when the inquiry might not be into the guilt of the prisoner but any mitigating circumstance. That can be left aside in a consideration of this case.

48. Section 475(4) does not in express terms direct the judge to make a report but McHugh J said in Eastman v Director of Public Prosecutions at [14] that if a judge gave the direction under s 475(1) `by necessary implication the judge had a duty to make a report ...'. It is difficult to envisage circumstances where a judge who has given a direction under s 475(1) would not write a report. The duty is perhaps enlivened by the direction.

49. Where the inquiry is into the guilt of the prisoner, the real question is whether there has been a miscarriage of justice such that the conviction should not have been entered because guilt was not established or not been entered because of a flaw in the process which, perhaps, meant that the prisoner did not have a fair trial or lost the chance of an acquittal. That means that the judge when writing the s 475 report should ordinarily address a number of matters to enable the Executive to dispose of the matter justly.

50. The judge must identify the doubt or question and discuss and determine whether the evidence the judge has directed be taken allows it to be said that the doubt or question is dispelled or been confirmed so that the judge can be satisfied that something has gone wrong. In the end, however, the judge must address the questions to which I have referred. The judge should also, if he or she is of the opinion that a remedy ought to be granted, opine on the appropriate remedy for the consideration of the Executive. Because the Executive must dispose of the matter justly, it needs that sort of assistance from the judge. If the judge is of the opinion that the prisoner has not been the victim of a miscarriage of justice in the sense that the prisoner had a fair trial and did not lose an opportunity for a verdict of acquittal, then the judge must say so because otherwise the Executive could not dispose of the matter justly.

51. To put it another way, the judge's report must contain whatever is necessary to advance the purpose of the section which, in modern usage, is to ensure that a convicted person, who has exhausted that person's appeal rights, does not continue to be the victim of a miscarriage of justice.

52. The judge does not approach that task as a Court of Criminal Appeal. It may be accepted, since Criminal Appeals were introduced, that a prisoner who is seeking to invoke the benefits of the section will have exhausted their appeal rights. Even if a prisoner has not appealed against the conviction but has merely invoked this procedure, the process is not an appeal. The inquiry which may be directed is quite different to the manner in which and the rules under which an appeal is conducted.

53. Section 5 of the ADJR Act empowers a person aggrieved by a decision `to which this Act applies', to apply to the Supreme Court for an order of review in relation to a decision on any of the grounds set out in s 5(1).

54. The dictionary in the ADJR Act provides a definition for the expression `decision to which this Act applies':

decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1.

55. Schedule 1 of the ADJR Act does not apply to s 475 of the Act. An enactment is also defined in the ADJR Act and means, relevantly, `An Act or subordinate law'.

56. Therefore, the ADJR Act will apply if a decision was made by the respondent which was of an administrative character and was made, or required to be made, under an Act.

57. Section 3A(2) of the ADJR Act provides an extended definition of the `making' of a decision. It provides:

(2) If provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for this Act, to be the making of a decision.

58. Section 3A(2) is the result of an amendment to the ADJR Act. That subsection replaced s 3(3) of the ADJR Act which was in the following form:

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall be taken, for the purposes of this Act, to be the making of a decision.

59. The repealed subsection was in the same form as s 3(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Commonwealth Act).

60. Whilst the present subsection is now in different terms to the subsection in the Commonwealth Act, the differences are immaterial for the purposes of the construction of the present subsection. The major change in the terms is to remove words which were surplusage, i.e. `is made in the exercise of powers under that enactment or under another law'. The updating of the language in the subsection does not mean that the new subsection has any different idea to the repealed subsection: s 147(5) of the Legislation Act 2001 (ACT). The subsection, in my opinion, bears the same construction as the previous subsection in the ADJR Act and the Commonwealth Act.

61. It follows then that a report will be a decision to which the ADJR Act applies if an enactment requires a report or recommendation to be prepared before a decision is made.

62. In my opinion, s 3A(2) of the ADJR Act does not apply to s 475(4) of the Act because s 475(4) does not provide that a decision is to be made upon the making of a report. Where the judge has given a direction to a magistrate s 475(4) does not expressly require the judge to make a report but by implication obliges the judge to report to the Executive on the information which has been transmitted to the judge by the magistrate. Where a report is prepared and submitted to the Executive, the Executive is not bound to make a decision on that report. Section 3A(2) of the ADJR Act therefore does not apply because first, there is no obligation on the Executive to obtain a report prior to making a decision although the Executive would receive one where the judge directed the inquiry; secondly, the Executive's power under s 475(4) is not conditioned by the obtaining of a report; and, thirdly, the Executive is not bound to make a decision under s 475(4) even if a report is obtained and provided to the Executive.

63. In Ross v Costigan (1982) 41 ALR 319, the respondent was a Royal Commissioner appointed pursuant to Commonwealth letters patent. During the inquiry, counsel assisting the Royal Commissioner alleged that certain persons had been involved in a conspiracy to breach a section of the Companies Act 1961 (NSW). The applicants were two persons whom the respondent proposed to investigate in relation to those allegations. The applicants sought a review of the decision under the Commonwealth Act. Section 5 entitled a person who was aggrieved by a decision to apply to the Court for an order of review. Section 3(3) of the Commonwealth Act was in the same form as the repealed subsection in the ADJR Act.

64. Ellicott J had to consider the construction of s 3(3) of the Commonwealth Act and said at 332:

It was argued that because of the provisions of s 3(3) of the Act the making of a report and recommendation pursuant to the letters patent is "a decision" and that combined with s 3(5) the conduct of the respondent to which I have referred is conduct engaged in or proposed to be engaged in for the purpose of making that decision.

I do not think that s 3(3) has that effect in this case. In my view it contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other. An example of such a case is illustrated by the circumstances in Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509. This is not such a case. I therefore do not propose to grant any interlocutory relief in relation to the making of a report or recommendation in relation to the matter in question. This does not mean that in my view, upon full consideration a court could not come to the conclusion that a decision of a Royal Commission such as this to report or recommend was a decision for the purposes of the Act. If it did, however, it would not do so, in my view, because of the operation of s 3(3).

65. Importantly, his Honour construed s 3(3) as contemplating an enactment which requires there to be a report or recommendation as a condition precedent to the making of a decision under that enactment or some other enactment.

66. In Edelsten v Health Insurance Commission (1990) 27 FCR 56, the Full Court was called upon to consider Ellicott J's construction of s 3(3). Northrop and Lockhart JJ said, after referring to s 3(3) of the Commonwealth Act, at 70:

In our opinion, s 3(3) applies where there is a provision in an enactment that a particular report or recommendation be made as a condition precedent to the making of a decision under that enactment or under another law. The subsection was considered by Mason CJ in Bond (at 335-336 second column) but as an indication that the word "decision" as used in the Judicial Review Act has a relatively limited field of operation. The Chief Justice's remarks did not touch the present question. We agree with the view expressed by Ellicott J in Ross v Costigan (1982) 59 FLR 184 at 198 that s 3(3) "contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other".

Regulation 3(2)(b) is an enactment, but it makes no provision of the kind envisaged by s 3(3). Nor is any referral itself under reg 3(2)(b) a condition precedent to the exercise of any power conferred upon the Minister or his delegate under any enactment whether under s 82 of the Health Insurance Act or otherwise. Any report and recommendation made by the Committee under ss 104 and 105 is an illustration of a report which constitutes a decision by reason of s 3(3) of the Judicial Review Act. Such a report is a condition precedent to the exercise of the power conferred on the Minister by s 106 of the Health Insurance Act.

67. The intervenor has submitted that I should follow Ellicott J's decision which has been approved by the Full Court of the Federal Court and hold that s 3A(2) has no application to s 475 and that, in those circumstances, the ADJR Act has no application to s 475(4). For reasons already given, s 3A(2) is not materially different from s 3(3) of the Commonwealth Act.

68. The same argument was put to Gray J in Eastman v Miles [2004] ACTSC 32; (2004) 181 FLR 418. His Honour said at 429-430:

The Attorney-General in his submissions, says that there is no "link" which he says s 3(3) of the ADJR Act requires between the making of a report by a judge and any decisions which might or might not be subsequently made by the Executive. Accordingly, it is submitted that the making of such a report is not a decision to which the ADJR Act applies. In support of this submission, the observations of Ellicott J in Ross v Costigan (No 2) (1982) 59 FLR 184 in considering that the report of a Royal Commissioner was not a reviewable decision under s 3(3) of the Commonwealth Act, were cited. Ellicott J observed (at 332) -

It was argued that because of the provisions of s 3(3) of the Act the making of a report and recommendation pursuant to the letters patent is "a decision" and that combined with s 3(5) the conduct of the respondent to which I have referred is conduct engaged in or proposed to be engaged in for the purpose of making that decision.

I do not think that s 3(3) has that effect in this case. In my view it contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other.

Ellicott J's view was applied in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70 by Northrop and Lockhart JJ. In neither case was there provision in the enactment for the ultimate decision-maker to act on the report or recommendation. However, in the present case, s 475 of the Crimes Act 1900 specifically provides for the matter to be disposed of "as to the Executive, on the report of such judge, or otherwise, shall appear to be just". I would agree that the making of the report is not the only condition precedent for the Executive to act (a petition of the prisoner or some person on his or her behalf is another) but it is a condition precedent upon which a decision may be made under the enactment. In my view, that is sufficient to distinguish the cases upon which the Attorney-General relied.

69. Gray J has reasoned that a decision under s 475(4) by the Executive requires as a condition precedent a report of a judge or otherwise. Whilst the making of the report is not the only condition precedent upon which the Executive might act, `it is a condition precedent upon which a decision may be made under the enactment'. He therefore distinguished the two decisions of the Federal Court.

70. The intervenor has submitted that Gray J's decision is wrong because his Honour has wrongly assumed that s 475(4) is a substantive source of power to make a decision. The intervenor argues that s 475(4) does not empower or require the Executive to do anything but is simply a reference to how the Executive might exercise the prerogative or otherwise.

71. I do not agree, with respect, with Gray J's reasons for two reasons. First, s 3A(2) of the ADJR Act and s 3(3) of the Commonwealth Act only apply where the making of the report is a condition precedent to the making of a decision. It may not be the only condition precedent to the making of a decision but it must be a condition precedent. If, as in this case under s 475(4), it is not necessarily a condition precedent then, in my opinion, s 3A(2) of the ADJR Act has no application. Secondly, s 475(4) does not require any decision to be made by the Executive. In those circumstances, any report which is made and furnished to the Executive, which itself may not make a decision, could not, by virtue of the Act, be deemed to be the decision of the Executive because no decision may be made by the Executive.

72. For those two reasons, I do not agree with the point of distinction made by Gray J and I think, with the greatest respect to his Honour, the decision to be wrong.

73. In my opinion, s 3A(2) of the ADJR Act has no application to s 475(4) of the Crimes Act and so it follows, in my opinion, the ADJR Act has no application to any report of a judge made after receiving from a magistrate the material information requested under s 475(1).

74. However, notwithstanding my opinion, Gray J's decision stands and the intervenor accepts it is arguable that it may give rise to an issue estoppel between the parties: Taylor v Ansett Transport Industries and Another (1987) 18 FCR 342. Indeed, the intervenor has applied for leave to appeal from Gray J's decision, out of time, but that application has been adjourned pending the conclusion of these proceedings.

75. Even though I think Gray J's decision to be wrong, I do not think it would be appropriate to dismiss this application upon the ground advanced by the intervenor until such time as Gray J's decision is considered on appeal if, in fact, leave is granted.

76. The applicant also relied upon s 34B of the Supreme Court Act seeking the issue of the prerogative writs. Section 34B of the Supreme Court Act empowers the Court to grant any relief or remedy relevantly by mandamus, prohibition or certiorari. In this case, the appellant sought the issue of a writ of certiorari to quash that part of the respondent's report which found that the applicant was fit to plead throughout the trial and found that an unresolved question of the applicant's fitness to plead at trial did not result in a miscarriage of justice. He also sought an order in the nature of mandamus referring the matter to the respondent for further consideration according to law and subject to such directions as the Court thinks fit. In the alternative, he sought a declaration, the power for which is not given by s 34B, that the respondent should have proceeded to find that the question or doubt as to the applicant's guilt identified by him at the beginning of the inquiry had been confirmed, and should have recommended that the Executive, in order to dispose of the matter justly, take action to set aside the applicant's conviction. Whilst s 34B does not give power to make a declaration, the Court could on an application for judicial review make a declaration of right. The intervenor accepted that proposition.

77. It was argued by the intervener that the applicant was not entitled to relief under s 34B because neither of the writs of certiorari or mandamus could issue. The intervener submitted that certiorari could not go in relation to the report because the report has no legal effect and carries no legal consequences and therefore there could not be anything to quash. In that regard, the intervener relied upon The Queen v Collins; Ex parte ACTU v Solo Enterprises Pty Ltd (1976) 50 ALJR 471, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581, 585 and Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. In my opinion, that contention must be accepted. In The Queen v Collins; Ex parte ACTU v Solo Enterprises Pty Ltd, Stephen J was concerned with an application for an order nisi to quash the report of a Royal Commission. He said at 473:

The instant Royal Commission is just such a mere commission of inquiry and report, its compulsive powers it derives from Commonwealth statute law, and they are not under challenge. The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, rights nor does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences. The making of the report does not place rights "in a new jeopardy" or "subject them to a new hazard", as Kitto J. thought was done by the inspector's reports in Testro Bros Pty. Ltd. v Tait [1963] HCA 29; (1963), 109 C.L.R. 353, at pp. 369, 370.

78. In Ainsworth v Criminal Justice Commission, Mason CJ, Dawson, Toohey and Gaudron JJ said of the writ of certiorari at 580:

The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a cause of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari.

79. In Hot Holdings Pty Ltd v Creasy, Brennan CJ, Gaudron and Gummow JJ said at 159:

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

80. This is not a report of the latter kind identified by the majority in Ainsworth v Criminal Justice Commission. This is not a report which is a precondition to a course of action or a step in a process capable of altering rights. As I have already explained, s 475(4) does not require a decision to be made upon the report. There is no obligation pursuant to s 475 resting on the Executive to make a decision on the report. Moreover, no power is given to the Executive under s 475(4) to make any decision. Section 475(4) is a machinery provision which enables the Executive to obtain information. If it is to make a decision, it would make it under some other power: Eastman v The Attorney-General. The report has no legal effect and carries no legal consequences. In my opinion, certiorari would not go to quash the decision even if the applicant established the matters of which he complains.

81. Next it was argued that mandamus would not apply to Miles AJ because his commission had expired and he would have no jurisdiction to conduct any further inquiry. Section 60A of the Supreme Court Act empowers a judge who ceases to hold office whilst proceedings were being heard by the judge to continue to exercise the jurisdiction of the Court for the purposes of hearing and determining those proceedings. The proceedings to which s 60A refer are judicial proceedings and do not, in my opinion, include the writing of a report under s 475. In those circumstances, this Court would not order him to perform the duties of an office to which he was not presently appointed. If the applicant's wider contentions are accepted and he establishes error on the part of the Acting Judge, no order could be made to require the former Acting Judge to write a report if he is not empowered so to do.

82. The Court could make a declaration of right without issuing a prerogative writ but the Court would not make a declaration of the kind sought. In particular, it would not make a declaration that Miles AJ should have recommended to the Executive that action be taken to set aside the applicant's conviction. Moreover, a declaration would not be made where the declaration would produce no foreseeable consequences: Ainsworth v Criminal Justice Commission at 582. At best, the applicant could obtain a declaration that there was at trial on the morning of 22 May 1995 an unresolved question of the applicant's fitness to plead. If the prerogative writs do not lie a declaration could not assist the applicant. In those circumstances, it is my opinion that the applicant cannot be entitled to the relief sought under s 34B or declaratory relief.

83. However, in case I am wrong and the applicant is entitled to relief under either the ADJR Act or s 34B of the Supreme Court Act, I should address the matters about which the applicant complains.

84. The applicant contended that two questions were raised by the grounds advanced:

(1) did the respondent misconceive the question that was the subject of the report and thereby fall into jurisdictional error, or fail to take into account a relevant consideration or commit an error of law;

(2) did the respondent deny the applicant procedural fairness in the conduct of the inquiry that led to the report.

85. The applicant argued that the respondent correctly identified the scope of the particular inquiry when he said on 7 August 2001:

If a person has been found guilty when an issue as to that person's fitness to plead has arisen at the trial but has not been determined according to law, then it follows that a question arises as to the finding of guilt. On the material before me, the present application raises the question whether that issue arose at the trial of David Harold Eastman.

86. The applicant also contended that the letter written to the Chief Magistrate on that same day also properly formulates the question or doubt, that is, `whether the question of fitness to plead arose at his trial'. The applicant further contends that the respondent properly identified the effect of a person becoming unfit during the trial in the respondent's report at [200]:

In considering, after conviction, whether there was a question as to a person's fitness during trial, it would be simplistic to look only at the capacity of the accused person from a viewpoint reached at the end of the trial. If there was a question as to the person's unfitness at any time during the trial, the trial could not lawfully have proceeded thereafter and recovery at a later stage during the trial, restoring the person to fitness, would not validate the trial by resolving the question. Furthermore, if there was an outstanding question as to fitness during the trial, there would be no resolution of that question by showing that the indicia of unfitness present at one stage of a trial were no longer present at a later stage of the trial. The emergence of a question of fitness only at a very late stage in the trial still requires the question to be dealt with by the trial judge as the law provides.

87. However, it was contended the respondent took into account an irrelevant consideration which he first addressed when he asked rhetorically at the directions hearing on 7 August 2001 whether an inquiry under s 475 should `attempt for itself to look for an answer to the question whether David Harold Eastman was in fact unfit to plead'.

88. The respondent thereafter received written and oral submissions on the issue of the proper question for consideration. He thereafter, so it was contended, misdirected himself as to what he could lawfully do.

89. In his report, the respondent discussed the question of the scope of the inquiry and of the report. He referred to his letter to the Chief Magistrate of 7 August 2001 and said:

84. Counsel for Mr Eastman submitted that in accordance with the terms of the direction, the issue for the inquiry is not whether Mr Eastman was in fact unfit to plead at his trial, but whether there was a question of fitness to plead at his trial. Counsel for the Territory submitted that the primary function of the inquiry is to determine whether a miscarriage of justice occurred because Mr Eastman was in fact unfit to plead, and that I should not inquire into whether there was a question which required determination at the trial.

85. I do not accept either submission in its entirety. I reject the notion that the inquiry is limited in either of the ways that each of the submissions implies. The terms of the direction are to be read subject to those of s 475. They are not to be construed as if they were themselves a piece of legislation. The terms of the direction allow for a two-stage or possibly three-stage inquiry. The first stage is an investigation into whether, if all the material available in the inquiry had been available and made known to the Court at the trial, there would have been a question at the trial as to Mr Eastman's fitness to plead. If there would not, that would be an end to the inquiry. If there would, the second stage of the inquiry would be reached. It would involve the investigation of whether or not Mr Eastman was in fact unfit to plead at any time during his trial. If it were found that he was not in fact unfit at any time during his trial, the inquiry might end there. The third possible stage of the inquiry would be reached in the event of a conclusion that David Harold Eastman was in fact unfit to plead during the whole of his trial or at some time or times during the trial. If that conclusion were reached, there would need to be further consideration of the nature of any miscarriage of justice or failure in the trial process that resulted from such unfitness in order that appropriate recommendations might be made to the Executive about possible remedial steps.

86. It was submitted on behalf of Mr Eastman that if it were determined in the inquiry that there would have been a question as to his fitness to plead then there should be a further determination that the trial was or would have been a nullity and that the conviction would have been set aside if there had been an appeal. In my view, the submission is logically valid in its field of hypothesis. However, it must be emphasised that as a matter of historical fact, when Mr Eastman's trial took place, there was no question as to his fitness to plead within the applicable terms of the ACT legislation. In my view, there is no utility in starting and stopping at what is obvious as a matter of law without this inquiry taking place, namely that if there had been such a question and it remained unresolved, then the trial would have been a nullity. Rather, what is required of the inquiry within the overall purposes of s 475 is to look at the whole of the circumstances relating to the trial including any unresolved question as to Mr Eastman's unfitness. If, in contrast to what happened at the trial, such an unresolved question emerges from all the material in the inquiry, then I should try to answer it for myself and then report to the Executive on whether there remains any doubt or concern about the conviction and whether any miscarriage of justice or error of process remains to be remedied.

90. It was contended that Miles AJ fell into error when he made the findings which he did at paragraph 275 of his report:

275. The material in the inquiry goes well beyond what was available and what could have been available to the Federal Court in 1997. It leads to the conclusion that, although there would have been a question as to Mr Eastman's fitness to plead on the morning of 22 May 1995, if the issue had been raised on the material then available, the question may now be regarded as resolved. With what may pass for the wisdom of hindsight, the question was resolved at the earliest by the end of that day, 22 May, when Mr Eastman demonstrated that he was capable of instructing his legal representatives when he chose to do so. That capacity was further confirmed by subsequent events. The resolution became clearer overall as the trial proceeded, although it may have been clouded from time to time. At the conclusion of the trial, viewed in retrospect, the assessment has to be that on the probabilities Mr Eastman was fit throughout. More than that, the Mental Health Tribunal, acting reasonably, could not have found him unfit, except on the morning of 22 May and then only on the basis that the material before the Tribunal was confined to what was available at that time on that date. But it is important to emphasise that had the Mental Health Tribunal found him in fact unfit at that time and date, it would have been wrong in its finding, as subsequent events have shown.

91. It was submitted that once the respondent found at paragraph 275 of the report that the question of fitness to plead arose on the morning of 22 May 1995, the respondent had fulfilled his inquiry duties and should not have inquired into whether the applicant was actually fit to plead and whether there was any miscarriage of justice by reason of the first question arising.

92. It was submitted that the doubt or question which needed to be resolved was the doubt or question referred to in the letter of 7 August 2001 from Miles AJ to Mr Cahill.

93. It is the applicant's contention that the question to be determined by Miles AJ was whether, at the applicant's trial, the question of the applicant's fitness to plead arose. That was the only question that should have been addressed. If as is contended Miles AJ found that it did, then the question or doubt as to the applicant's conviction remained.

94. It was contended by the applicant that the respondent was not entitled for himself to address whether or not the applicant was fit to plead during his trial. He should have had regard to the procedure which was in place at the time of the applicant's trial. Section 428E(1) of the Crimes Act then provided:

(1) Where, on the trial of a person charged with an indictable offence -

(a) the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and

(b) the Court is satisfied that there is a question as to the person's fitness to plead to the charge/

the Court shall order the person to submit to the jurisdiction of the [Mental Health Tribunal] to enable the [Mental Health Tribunal] to determine whether or not the person is fit to plead to the charge.

95. It was contended that because the question of the applicant's fitness did arise at trial on the morning of 22 May, and because it was unresolved in accordance with the procedure for resolving that question, it could never be said that the applicant's conviction was safe.

96. It was contended that in making that further inquiry the respondent was acting outside his jurisdiction which was circumscribed by the question or doubt which he had identified under s 475(1): Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-180.

97. It was also contended by Mr Eastman that the respondent failed to accord the applicant natural justice in determining that wider question.

98. In my opinion, both contentions overlooked what Miles CJ said on 7 August 2001, what he ordered (if it be an order) on 7 August 2001, and the contents of his letter to the Chief Magistrate on the same day.

99. On 7 August 2001 the Chief Justice addressed the question and the role of the judge and concluded by saying that he proposed to direct the Chief Magistrate to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of the applicant. That is what he directed and that is what he wrote when directing the Chief Magistrate. The Chief Magistrate was directed to summon and examine on oath `all persons likely to give material information on the matter of the fitness to plead of (the applicant)'. The inquiry was not limited to whether the question of the applicant's fitness to plead arose but included the wider question as to the applicant's fitness to plead. The report which Miles AJ wrote was based on the depositions taken by the magistrate in accordance with the direction given to the Chief Magistrate.

100. In Appendix 4 to the report, Miles AJ addressed the nature of the inquiry under s 475. He said that he was bound to consider all of the material in all of the proceedings in the trial, the appeals and the applications, and the materials gathered by the magistrate in the inquiry to determine whether there was, or would have been, a question of the applicant's fitness to plead and, if so, whether in fact the applicant was unfit to plead at any time during the trial.

101. He recognised that if the matter had been raised at trial the issue would have been governed largely by s 428E(1) of the Crimes Act, to which I have already referred in recounting the applicant's submission.

102. He assumed that it would be appropriate to proceed upon the basis that the issue of fitness to plead had already been raised under s 428E(1)(a) and that he should first consider whether there was an unresolved question as to the applicant's fitness to plead at his trial under s 428E(1)(b). He said that if he was not satisfied that there was now a doubt or question as to that matter he would need to find that the question or doubt which triggered the inquiry under s 475 no longer existed and would have to report accordingly. If, on the other hand, he was of the opinion that the question arose such that the trial judge would have ordered the applicant to submit to the jurisdiction of the Mental Health Tribunal he might take one of two courses. First, he could conclude that because the question arose and it was unresolved at trial, the trial was a nullity and the conviction that resulted should be set aside and a new trial take place. Alternatively, because he was conducting an inquiry and his decision was not the decision of a Court, he might look at the question for himself to see if in fact the applicant was unfit to plead at his trial.

103. He adopted the second course for the reasons he gave at [85] and [86], which are referred to in [89] above.

104. In my opinion, the second course was open to Miles AJ because s 475 itself does not dictate what course must be taken. The purpose of the inquiry under s 475 is to resolve the doubt or question as to the guilt of the applicant.

105. Miles AJ was performing an administrative function for the purpose of informing the Executive on that matter. He was not sitting as a Court of Criminal Appeal. To that end, he was entitled to determine for himself, if the question of the applicant's unfitness to plead at trial arose, whether in fact the applicant was unfit to plead. If, of course, it had arisen at the trial the applicant would have been required to submit to the Mental Health Tribunal for a determination as to whether or not he was fit to plead. That procedure was not available to Miles AJ at the time that he conducted his inquiry. A report which merely identified the fact that the question of the applicant's fitness to plead arose at trial would have been of no utility to the Executive. Unless the Executive was prepared to grant a pardon on that ground alone, absent any information as to whether the applicant was fit to plead or had suffered a miscarriage of justice, the Executive would have been bound to make further inquiries of the judge. In those circumstances, it was appropriate for Miles AJ to consider the question for himself and was a course plainly open to him. The first of the applicant's contentions must be rejected.

106. The second contention also must be rejected. At the time that he directed the inquiry, Miles CJ said that he proposed to direct the Chief Magistrate to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of the applicant. That was his order or, more precisely, his direction. He further directed that transcript retaining that which he said be provided to the applicant.

107. The applicant was represented by senior counsel before Miles AJ. On 6 April 2005 senior counsel provided written submissions to Miles AJ in which he said, after referring to Miles CJ's letter to the Chief Magistrate:

As Your Honour's letter indicated, the issue for this Inquiry is not whether Mr Eastman was in fact unfit to plead at his trial; it is whether the question of fitness to plead arose at his trial.

108. Counsel assisting also provided Miles AJ with written submissions. In those submissions, counsel wrote:

130. It is submitted that the following issues arise for consideration under the terms of his Honour's direction, his observations when making the direction and the authorities to which we have referred above under the heading "Authorities - Fitness to Plead".

(a) With the benefit of the material information now disclosed in the depositions, whether the question of fitness was "raised" at the trial for the purposes of section 428E of the Crimes Act;

(b) If the material information now disclosed in the depositions had been known at the time of Mr Eastman's trial, would it have required that a real and substantial question as to his fitness be raised such that it would have been referred to the Mental Health Tribunal under section 428?

(c) If so, would that material have warranted a finding that Mr Eastman was fit to plead pursuant to section 68 of the Mental Health (Treatment and Care) Act, 1994 (as at the date of the trial).

131. Issue (a) is clearly encompassed by the terms of the direction. If the question of fitness was in fact "raised" but not dealt with in accordance with section 428E, then the concerns discussed by various of the Judges of the High Court in Eastman v The Queen in terms of the trial being a "nullity" [2000] HCA 29; [(2000) 203 CLR 1, per Gaudron J at page 22] clearly arise.

132. It is submitted that issues (b) and (c) are also encompassed by the terms of the direction. They provide a framework, consistent with the Territory legislation and the authorities already discussed, by which consideration can be given to whether Mr Eastman was unfit to plead in reality. It permits the Inquiry to do the substantial work:

"... on the one hand [to] go to expose a serious injustice or on the other hand it might go to clear any doubt and resolve any question as to David Harold Eastman's guilt as contemplated by section 475." [Transcript, Miles CJ, 7 August 2001, Exhibit 2]

109. The Crown was separately represented and made written submissions and, in particular, drew to Miles AJ's attention the width of his direction to the Chief Magistrate and wrote:

19. Accordingly, it is submitted that the Inquiry is not being conducted into whether such a question arose at Mr Eastman's trial. Rather, as directed, the Inquiry is into Mr Eastman's fitness to plead at his trial. As submitted in the Crown's principal submissions, this is consistent with the fact that this is a post-conviction inquiry. Now that Mr Eastman's avenues of appeal against his conviction have been exhausted, the public interests lies more in knowing if Mr Eastman was in fact fit or unfit to plead at his trial rather than whether the provisions of s 428E were complied with. In any event, as Gaudron J said in Eastman v The Queen [2000] HCA 29; [(2000) 203 CLR 1 at 23 [65]] -

There is nothing in s 428E [to] suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person not be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if "on the trial of a person ... the issue of fitness to plead ... is raised". It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial.

110. The written submissions were exchanged. The applicant was thereby on notice that both counsel assisting and the Crown contended that his Honour should address the question as to whether or not in fact the applicant was unfit to plead at any time during his trial.

111. Counsel also made oral submissions. At a hearing on 11 May 2005 counsel assisting said:

MR HARRIS: The first area where there is significant divergence relates to the subject matter of the Inquiry. What it is? What is the matter into which we are inquiring?

To put it in short terms, and I hope I do no violence to the substance of the submissions by doing so, the submission on behalf of Mr Eastman at about page 3 of those submissions suggests that the only issue the subject of the Inquiry, is whether the question of fitness arose. Now ---

He addressed that issue in some detail.

112. Counsel for the Crown also addressed the same issue. He said:

So just to make myself clear, there's no doubt that on the materials before the Inquiry, your Honour the trial judge, then an issue is raised. But we say having regard to the function of the Inquiry, having regard to the fact that your Honour is not engaged in determining an appeal from a conviction, having regard to the fact indeed that the appellate processes are exhausted, that your Honour would proceed to the question of whether in fact Mr Eastman was fit to plead at his trial first and attempt to answer that question. Because that is the question, the answer to which has some utility having regard to the function of a post-conviction inquiry.

113. More importantly, Mr Eastman's counsel also made submissions directed to the scope of the inquiry. He submitted, like he had in his written submissions, that the only question to be decided was whether the question of Mr Eastman's fitness to plead arose at the trial.

114. In particular, he submitted that Miles AJ was not entitled to decide the wider question because if the matter had arisen at trial it would have been a question for the Mental Health Tribunal. The essence of his submission was that it was not a matter which could be inquired into ex post facto and Miles AJ could not put himself in the place of the Tribunal to determine the ultimate question as to whether or not the applicant was fit to plead at the time.

115. There is, in my opinion, no doubt that the exchange of the written submissions and the oral submissions indicated that it was a live issue at the inquiry as to whether or not the trial judge was entitled to address the question as to whether or not in fact the applicant was fit to plead.

116. The applicant made written submissions himself in addition to those made by his counsel. In those written submissions he made it clear that he understood that it was suggested that Miles AJ should decide the question as to whether or not the applicant was in fact fit to plead during the whole of his trial.

117. The applicant wrote in addressing that issue:

Technically you have the power to decide it, but it would be utterly inappropriate to do so. Even if the Mental Health Tribunal were empowered to make retrospective decisions (which it is not), it would be inappropriate even for it to do so a decade in arrears. The whole exercise would be too speculative. Hence, if you find an unaddressed question existed in 1995, there is nobody who can answer that question now. The only just remedy now is to quash the conviction.

118. Both the applicant and his counsel were aware that the question was live. Both were given the opportunity to make submissions in relation to the question and in fact both did. For those reasons, it could not be said that Miles AJ failed to accord the applicant procedural fairness.

119. In my opinion, both grounds fail and the application must be dismissed.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date: 9 May 2007

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

The applicant appeared in person for part of the hearing

Solicitor for the applicant: Deacons (for part of the hearing)

Counsel for the respondent: Mr Harris SC

Solicitor for the respondent: Meyer Vandenberg Lawyers

Counsel for the intervenor: Mr Gageler SC and Mr Mossop

Solicitor for the intervenor: Australian Capital Territory Government Solicitor

Date of hearing: 10, 11, 12 July 2006

Date of judgment: 9 May 2007