Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13 (26 February 2010)

Last Updated: 19 April 2010

DAVID HAROLD EASTMAN v CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY (NO 2)

[2010] ACTSC 13 (26 FEBRUARY 2010)

PROCEDURE – Commencing proceedings – withdrawal of proceedings – re commencing proceedings – improper purpose – abuse of process

PROCEDURE – Commencing proceedings – no other judge available – necessity

PROCEDURE – withdrawal of proceedings – “judge shopping”

BIAS – Disqualification judicial officer – apprehended bias – departure from impartial decision making

BIAS – Disqualification judicial officer – apprehended bias – “fair minded observer”

BIAS – Disqualification judicial officer – disqualification by conduct – ‘extreme’ and robust professional submissions made against Plaintiff – insufficient to disqualify

Corrections Management Act 2007 (ACT) ss 78(2)(b), 78(2)(d)

Court Procedures Rules 2006 (ACT), r 1160, r 1163(1)

Industrial Relations Act 1988 (Cth), s 10(2)

Administrative Decisions (Judicial Review) Act 1989 (ACT) s17(1)(a)

Crimes Act 1900 (ACT), ss 475, Pts, 20, 424(3)

Crimes Act 1900 (NSW), Pt 13

Application by David Harold Eastman for inquiry under Section 475 of the Crimes Act 1900 ACT) (Further remarks, Miles CJ, 7 August 2001)

Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman delivered on 6 October 2005

Eastman v Chief Executive Officer, of the Department of Justice & Community Safety [2010] ACTSC 4

Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Owners of Cargo of the Kronprinz v Owners of the Kronprinz (The Kronprinz and The Ardandhu) (1887) LR 12 App Cas 256

Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Concrete Pty Limited v Parramatta Design & Developments Pty Limited & Anor [2006] HCA 55; (2006) 229 CLR 577

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Re Polites and Anor; Ex parte The Hoyts Corporation Pty Ltd & Ors [1991] HCA 31; (1991) 173 CLR 78

R v Garrett (1988) 50 SASR 392

R v Judge Russell: Ex parte Reid (1984) 35 SASR 417

R v Eastman (ACTSC)10 November 1995, unreported)

Eastman v The Queen (1997) 76 FCR 9

Re The Governor, Goulburn Correctional Centre and Anor; Ex parte Eastman [1999] HCA 44; (1999) 200 CLR 322

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

Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230

Director of Public Prosecutions v Eastman and Ors [2002] ACTSC 35

Director of Public Prosecutions of the Australian Capital Territory v Eastman and Ors [2002] FCAFC 209; (2002) 118 FCR 360

Eastman v Director of Public Prosecutions of the Australian Capital Territory & Ors [2003] HCA 28; (2003) 214 CLR 318

Australian Capital Territory v Cavanagh & Anor [2004] ACTSC 107; (2004) 185 FLR 455

Eastman v The Attorney-General for the Australian Capital Territory [2007] ACTSC 28; (2007) 210 FLR 440

Eastman v The Honourable Justice Besanko [2009] ACTSC 10

Eastman v The Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1

Johnston, Superintendant of Belconnen Remand Centre v Eastman [2009] ACTCA 8.

Willing v Hollobone (No 2) (1975) 11 SASR 118

No. SC 1034 of 2009

Judge: Refshauge J

Supreme Court of the ACT

Date: 26 February 2010

IN THE SUPREME COURT OF THE )

) No. SC 1034 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Plaintiff

AND: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

Defendant

ORDER

Judge: Refshauge J

Date: 2 February 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The Honourable Justice Refshauge be and is disqualified from hearing these proceedings.

2. The date of 22 February 2010 for the taking of oral evidence from the Plaintiff be vacated.

3. The proceedings be listed before the Master at 9.30 am on 5 February 2010 for case management.

1. On 12 January 2010, I dismissed an application made by the plaintiff, David Harold Eastman, for interim relief in relation to an application he had made for orders that he be given work as a tutor at the Alexander McConochie Centre, where he is presently serving a life sentence following his conviction for the murder of Assistant Commissioner Colin Winchester of the Australian Federal Police: Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4.

2. The application was first heard on the last day the 2009 Law Term and had to be adjourned on two occasions so that it could be completed.

3. On the second occasion, Mr Eastman indicated that, although he considered that I should disqualify myself, he did not make that application on the first occasion because he had been advised that unless I heard the matter there was no other judge available who could hear it. He relied on the principle of necessity (Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (at 88)). In raising the matter, he wanted it to be clear that he was not waiving his right to challenge my sitting on his proceedings.

4. Subsequently, on 12 January 2010, just before I delivered judgment, he actually did seek to have me disqualify myself because of remarks I had made on the previous occasion. I declined to do so.

5. Mr Eastman wrote to the Registrar indicating that unless I disqualified myself because of my prior office, he would withdraw his present application. He then filed a fresh application (SC 68 of 2010) which sought a number of orders.

6. Order 3, namely, “That the Plaintiff be immediately given full – time work of a kind that complies with s78(2)(b) and (d) of the Corrections Management Act 2007”, is in relevantly identical terms to the proceedings in this matter. Thus, while discontinuing the proceedings in which I dealt with the interlocutory hearing, he proposed to commence further proceedings seeking the same orders.

7. A number of matters about this needs to be noted. In the first place, it is clear that a party who discontinues proceedings is not necessarily prevented from re-commencing those proceedings: Owners of Cargo of the Kronprinz v Owners of the Kronprinz (The Kronprinz and The Ardandhu) (1887) LR 12 App Cas 256 (at 259, 262). It is possible, however, that an application may be made to strike out those subsequent proceedings, or at least Order 3, or the notice of discontinuance, as an abuse of process, because in the context they appear to be designed to avoid having a particular judge hear the matter: Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 (at [25]-[28]). This improper purpose would clearly be an abuse of process: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (at 265 [9]).

8. It is also to be noted that a judge who hears an interlocutory application is not necessarily the judge who will finally hear the proceedings even if that judge is involved in case management of the proceedings prior to trial.

9. Although Mr Eastman has been involved in many court proceedings, it seems to me that as a litigant in person he was entitled to be advised, by me, of certain matters that he needed to know before making an informed decision about the progress of these matters.

10. In the first place, I pointed out to him that discontinuance or withdrawal of proceedings without the court’s leave rendered him immediately liable to an order for costs against him. He was able to withdraw without leave under r 1160 of the Court Procedures Rules 2006 (ACT) but in doing so was, by virtue of r 1163(1), liable to pay the defendant’s costs.

11. I also drew his attention to the fact that, should he discontinue and effectively re-institute the proceedings, the subsequent proceedings might be subject to a challenge on the ground of abuse of process.

12. Although his correspondence to the Registrar seeking to discontinue appeared to indicate a firm intention to withdraw these proceedings, he indicated that, in the light of the facts to which I have drawn his attention, he wished to apply first for me to disqualify myself from hearing these proceedings. He did not say to me in the course of the proceedings that if I refused to do so, he would discontinue the proceedings. That, in itself, may have been an abuse of process with the clear implication of a wish to engage in what might be called, “judge shopping”.

13. It is this application for disqualification which was the subject of the application. Mr P Walker for the defendant submitted that I did not need to disqualify myself and provided helpful submissions and authorities. On 2 February 2010 I did disqualify myself and indicated I would deliver my reasons later. These are those reasons.

The Law

14. The principles relating to the disqualification of a judicial officer for apprehended bias are well known. They are summarised in two seminal cases in the High Court of Australia.

15. In R v Watson; Ex parte Armstrong (1976) 136 CLR 248, the High Court said (at 264):

The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.

16. The principle was re-stated in Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 where the court said (at 293-4):

That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he (sic) might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

17. This test has been confirmed in a number of cases since then, including Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (at 492-3) and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at 344 [6]).

18. It is to be noted that in the joint judgment in Ebner v Official Trustee in Bankruptcy (at 345[7]), the court observed that deciding whether a judicial officer might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judicial officer will in fact approach the matter and decide the question. The question is one of possibility, real and not remote, not probability.

19. At 345[8], the court relevantly continued:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge ... has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

20. The characteristics of the “fair-minded observer” is also an important issue. Thus, in Johnson v Johnson (at 493[12]-[13]), after noting that the test is objective, the plurality observed:

At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

...

Whilst the fictional observer, by reference to whom the test is formulated is not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.

21. It is worth quoting what Kirby J said in Johnson v Johnson (at 508[53]) where his Honour said:

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

22. Callinan J wrote similarly where (at 517 – 518[80]), his Honour observed:

... It is important to keep in mind that the notion, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct.

23. Callinan J returned to this aspect of the relevant principle Concrete Pty Limited v Parramatta Design & Developments Pty Ltd & Anor [2006] HCA 55; (2006) 229 CLR 577 (at 635[177]), where his Honour wrote:

It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.

24. It is also to be noted that the test may operate somewhat differently depending upon the kind of apprehension of bias which is raised. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (at 74-75) Deane J considered four distinct, though overlapping, categories of case. His Honour said (at 74):

The area covered by the doctrine of disqualification by reason of the appearance of bias encompassed at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first ... and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third ... and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

25. In this case, the clear implication is that the ground is the second category, namely disqualification by conduct, alleging that my involvement in cases in which Mr Eastman was a party and when I was Director of Public Prosecutions amounts to such disqualification.

26. I need also to remind myself of the principle enunciated by the plurality in Ebner v Official Trustee in Bankruptcy (at 348[19] – [20]):

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection was sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the Bench. That would be intolerable.

27. There are, unfortunately, no cases which are in point, as, of course, so often pertains. In Re Polites and Anor; Ex parte The Hoyts Corporation Pty Limited & Ors [1991] HCA 31; (1991) 173 CLR 78, the Court had to consider whether a member of the Full Bench of the Australian Industrial Relations Commission should hear a case involving the terms and conditions of employment of employees of The Hoyts Corporation Pty Limited and two of its wholly-owned subsidiaries. The Deputy President had tendered certain advice to Hoyts when he was in practice as a solicitor. The question arose as to whether his presence as a member of the Full Bench of the Commission created a reasonable apprehension of bias within the principles already outlined. In this case, the court noted that it was dealing with a particular Tribunal and said (at 86-7):

Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal’s powers exercised. Qualification for membership cannot disqualify a member from sitting.

28. The Court then identified the qualifications for membership of the Commission in s 10(2) of the Industrial Relations Act 1988 (Cth) which required experience in industry or commerce or in the service of employee or employer associations and the like. The Court continued (at 87 - 88):

The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of “skills and experience” amount to such a disqualification.

...

A prior relationship of legal advisor and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit.

29. Similarly, in R v Garrett (1988) 50 SASR 392, the Full Court of the Supreme Court of South Australia had to consider the situation where a judge had previously as Solicitor-General appeared on appeals by the accused in earlier matters before the Court of Criminal Appeal and on an application for the special leave to appeal to the High Court of Australia. King CJ said (at 400):

Whether the fact that a judge has previously appeared as counsel against a party to the proceedings gives rise to the reasonable apprehension of bias must depend upon the circumstances. It is not difficult to conceive of circumstances in which that would be so. The learned trial judge in the present case, appeared as counsel only at appellate level. The issue on the appeal was a question of law and such submissions as referred to the facts did so only in an incidental way. ... I do not think there could be any reasonable apprehension of bias arising out of these matters.

30. Von Doussa J, whilst agreeing with King CJ quoted with approval what had been said by Walters J, with whom King CJ and Mohr J agreed in R v Judge Russell: Ex parte Reid (1984) 35 SASR 417 where his Honour said (at 422):

For my part, I find it difficult to believe that a fair-minded observer would have reasonable grounds for apprehending that simply because a member of a small industrial Bar had identified himself, in his professional duties as a barrister, with the interests of a particular employer in matters of industrial disputation, he would, on his appointment to judicial office in an Industrial Court, be unable to bring a fair and unprejudiced mind to the decision of matters involving the party for whom he has formerly acted. To take the obverse position, I could scarcely believe that simply because a barrister practising in the field of industrial law had commonly acted on a professional capacity in the interests of employees, any reasonable observer would have grounds for apprehending that the appointment of that barrister to judicial office in the Industrial Court, he would be unable to bring a fair and unprejudiced mind to the resolution of matters arising before him. If I may take the matter one step further, I think it would be absurd to suggest that on the appointment of an officer of the Crown to a judgeship of the Supreme Court of this State, he would be unable, in matters in which the Crown was a party, to administer justice with an independent and impartial mind. No fair-minded citizen could reasonably apprehend or suspect that that judge would depart from his judicial oath.

Facts in this Case

31. I was appointed Director of Public Prosecutions in August 1998. Prior to that, as I noted in Eastman v Chief Executive Officer of the Department of Justice & Community Safety, I had some brief involvement with Mr Eastman at a much earlier time.

32. On 10 January 1989, Assistant Commissioner Winchester of the Australian Federal Police, was killed outside his home in Canberra. A lengthy inquest was conducted into his death and Mr Eastman was identified as a suspect. He was represented at the Inquest.

33. On 24 December 1992, Mr Eastman was committed for trial by the Coroner and the trial commenced on 2 May 1995 on an indictment dated 29 March 1993. On 3 November 1995, the jury returned a verdict of guilty and on 10 November 1995, Mr Eastman was sentenced to imprisonment for life: R v Eastman (ACTSC), 10 November 1995, unreported).

34. An appeal was instituted against the conviction in the Federal Court of Australia, then the appellate court from this Court. It was heard from 10-14, 18-21 March 1997 and decided on 25 June 1997, when the appeal was dismissed: Eastman v The Queen (1997) 76 FCR 9.

35. I did not act for Mr Eastman in any of the proceedings involving the Inquest into the death of Assistant Commissioner Winchester or the subsequent trial of Mr Eastman for Assistant Commissioner Winchester’s murder or the subsequent appeal to the Federal Court.

36. Indeed, when I was appointed Director of Public Prosecutions, the appeal to the Federal Court had concluded over a year before.

37. Mr Eastman then sought special leave to appeal to the High Court of Australia from the decision of the Full Court of the Federal Court of Australia and also sought habeas corpus relief in the High Court of Australia. Both these proceedings were heard in the High Court commencing on 25 March 1999. Judgment was delivered in the habeas corpus proceedings on 2 September 1999 when the application was dismissed: Re The Governor, Goulburn Correctional Centre & Anor; Ex parte Eastman [1999] HCA 44; (1999) 200 CLR 322.

38. The application for special leave was adjourned to 1 February 2000 and was then concluded. Judgment was delivered on 25 May 2000. Although special leave to appeal was granted, the appeal was dismissed: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1. In these proceedings, I instructed counsel but appeared as junior counsel to Mr T A Game SC at the resumed hearing of the application for a special leave to appeal.

39. In my view, my involvement in none of these proceedings could be sufficient to justify disqualification for apprehended bias to prevent me from sitting in these proceedings.

40. Thereafter, however, Mr Eastman made an application under s 475 of the Crimes Act 1900 (ACT) for a post-conviction inquiry. That inquiry was sought on a number of grounds relating to evidence in the trial based on reports by Dr James Wallace, a forensic scientist from Northern Ireland, who had examined some reports of the trial, and other material and was critical of the evidence of Mr Robert Barnes, who gave evidence for the prosecution at the trial. In addition, Mr Eastman wished to raise the question as to whether he was fit to plead at the time of his trial, for, if he were not, the trial would be a nullity: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230.

41. As Director of Public Prosecutions, I appeared by counsel at a preliminary hearing called by Miles CJ who had received the request for the inquiry and submissions were made to that.

42. Subsequently, Miles CJ directed that an inquiry should not be held on the matters of evidence but an inquiry should be held in relation to the question as to whether Mr Eastman was fit to plead: see Application by David Harold Eastman for inquiry under Section 475 of the Crimes Act 1900 ACT (Further remarks, Miles CJ, 7 August 2001).

43. I made an application to the Supreme Court seeking judicial review of the decision under s17(1)(a) Administrative Decisions (Judicial Review) Act 1989 (ACT). It was a little curious for the Attorney-General was also a party and opposed my application. That application was dismissed by Gray J on 3 May 2002: Director of Public Prosecutions v Eastman and Ors [2002] ACTSC 35.

44. I then challenged this decision which had, of course, been favourable to Mr Eastman, allowing the inquiry to proceed. That challenge was heard by the Federal Court of Australia on 3 July 2002 and the appeal was upheld: Director of Public Prosecutions of the Australian Capital Territory v Eastman & Ors [2002] FCAFC 209; (2002) 118 FCR 360. Mr Eastman sought special leave to appeal to the High Court and on 15 November 2002 special leave was granted. On 28 May 2003 the High Court unanimously upheld Mr Eastman’s appeal: Eastman v Director of Public Prosecutions of the Australian Capital Territory & Ors [2003] HCA 28; (2003) 214 CLR 318.

45. In all these challenges, I was represented by counsel. It was clear, however, that I was in a slightly different position than is usual for a Director of Public Prosecutions, when he or she represents the public interest often otherwise represented by the Attorney-General. The Attorney-General appeared in these proceedings and opposed my application. While, of course, I was acting in my statutory capacity, my relationship with the proceedings was somewhat different from the relationship, for example, that I would have had with respect to ordinary criminal prosecutions and appeals.

46. The inquiry proceeded and took evidence. I was represented by Senior Counsel, Mr D A Buchanan SC, during that time and counsel took an active part in the proceedings. Ultimately, Miles CJ, who had resigned as Chief Justice on 30 September 2002 but was re-appointed as an Acting Justice of the Supreme Court, in that latter capacity completed the inquiry. The Report, Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman, was delivered on 6 October 2005. That report found (at [277] that it had

not been shown that it is likely that Mr Eastman was unfit to plead at any time during his trial. Further, any question as to his fitness that was unresolved, morning of 22 May 1995 did not result in a miscarriage of justice.

47. I pause to note that, during the course of the inquiry, I had occasion to challenge a decision of the Magistrate taking evidence for the inquiry (Australian Capital Territory v Cavanagh & Anor [2004] ACTSC 107; (2004) 185 FLR 455)

48. There was litigation following the release of this report (see, for example, Eastman v The Attorney-General for the Australian Capital Territory [2007] ACTSC 28; (2007) 210 FLR 440). I sought leave to appear in those proceedings but that leave was refused.

49. In 2001, the government repealed s 475 of the Crimes Act 1900 (ACT) and inserted a new part 20 which established a reformed post-conviction appeal process modelled on part 13 of the Crimes Act 1900 (NSW) which provided for a more sophisticated procedure for such inquiries resolving some of the difficult procedural issues that had been encountered in the earlier inquiry.

50. By letter dated 2 February 2005, Mr Eastman applied for an order that an inquiry be held under part 20 of the Crimes Act 1900 (ACT).

51. Under that provision, it was mandatory that a copy of the application be provided to the Attorney-General and that the Director of Public Prosecutions be given an opportunity to make written submissions on the question of whether an inquiry should be held (s 424(3)). That matter was referred to Besanko J, an additional judge of this Court, to determine whether the Court should direct that an inquiry be held. As empowered to do so, I made submissions to that inquiry. In fact, I caused counsel to prepare two sets of submissions, the first dated 28 September 2007 and the second dated 18 October 2007. As Director, I personally signed both sets of submissions.

52. On 4 April 2008, Besanko J refused to make an order that the inquiry be held. He published lengthy reasons for that decision. By that time, of course, I had ceased to be Director of Public Prosecutions, having been appointed to this court on 7 January 2008.

53. There were subsequent proceedings in respect of the decision by Besanko J (see Eastman v The Honourable Justice Besanko [2009] ACTSC 10) and, indeed, the proceedings are continuing. Naturally, I have had no part in any of those proceedings.

54. Mr Eastman has been involved in other proceedings, for example, relating to government housing (see Eastman v The Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1) and about his conditions of detention (see Johnston, Superintendant of Belconnen Remand Centre v Eastman [2009] ACTCA 8).

55. It is to be noted that I did hear earlier interlocutory proceedings in this matter (see Eastman v Chief Executive Officer of the Department of Justice & Community Safety) [2010] ACTSC 4). That involvement was justified on what is sometimes called “the doctrine of necessity”: Willing v Hollobone (No 2) (1975) 11 SASR 118 (at 124) and Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (at 88). Accordingly, that matter cannot assist the determination of this application either way. Indeed, as I have noted, while Mr Eastman did not expressly in court initially object to me hearing the matter, he did, during the course of the proceedings, reserve his right to object noting that because the proceedings were conducted in late December and early January, I was the only judge available at the time to hear the matter.

56. In those proceedings, I also recounted what Mr Eastman had submitted, namely that we had a telephone conversation at or about the time that my appointment to this court was announced. Mr Eastman stated that, in that conversation he said that I had told him I would not hear any matters involving him. I believe that I meant that this was limited to any challenge to his conviction or closely related proceedings. In any event, such a statement could not and should not bind a judicial officer where he or she has been allocated a case unless there is, in fact, a basis for disqualification.

Consideration

57. It is, then, in the light of the above matters and on the application of the above principles of law, that I need to determine whether I should disqualify myself from further hearing this matter. The basis is the ongoing opposition I had conducted to the proceedings by Mr Eastman, disclosing an adversarial relationship with him.

58. It is not an easy question and there is no decision directly in point that can assist. Indeed, while other decisions on matters such as this can assist by identifying principles, factors or considerations, it is rare that they can determine the decision that a judicial officer has to make on such an application.

59. It seems to me that the decision I made, which led to a decision in this court upholding Mr Eastman’s right to an inquiry, but which I then challenged, successfully, in the Federal Court, but which Mr Eastman then challenged successfully in the High Court, stands in a slightly different position to my participation in other proceedings as Director of Public Prosecutions.

60. Mr Eastman also based his challenge on suggestions that in submissions I had made to various other courts and inquiries, I had expressed myself in robust and, in Mr Eastman’s words, “extreme” terms. That, in a case of the inquiry before Miles JA and the decision of Besanko J, the decisions of these judicial officers were in accord with the submissions that I made must result in a conclusion that those submissions were reasonably founded. So far as I can determine, there was no criticism in either report or decision of the terms of any submissions made by me or on my behalf. It is, indeed, inevitable that counsel, when involved in litigation, will make strong submissions on behalf of his or her client or interest represented. If, as appears to be a view of the High Court in R v Polites; Ex parte Hoyts Corporation Pty Ltd and Ors, that the mere representation of a client is insufficient to justify disqualification then the making of trenchant, robust but professionally proper submissions cannot disqualify counsel subsequently appointed as a judge from hearing proceedings involving the relevant litigant. It is likely to be otherwise if the issue in proceedings involving the same parties was identical to the issue about which the judge, as counsel, had earlier made submissions. It may also be inappropriate were those submissions to have dealt with, for example, the credibility of the party now appearing before the judicial officer. Of course, too, because of my position, I was somewhat in the nature of the client rather than merely counsel.

61. I have not had available to me all the submissions made in the inquiries. Mr Eastman did give oral evidence before Magistrate Cavanough and it may be that my counsel appearing in those proceedings may have made submissions as to Mr Eastman’s credibility.

62. There is a risk of that and, of course, that would, depending upon the precise terms of such submissions, raise a real issue for consideration as to whether there might be an apprehension of bias.

63. Further, there will be, no doubt, in the mind of reasonable observers in the community, an identification with me as Director of Public Prosecutions being the principal adversary to Mr Eastman in the various litigation and, particularly, the inquiries although, of course, that is less so in more recent years.

64. The issue in these proceedings is the conditions under which Mr Eastman is detained. While, of course, he is only detained as a result of the sentence imposed following his conviction, it does seem to me that this is not so closely connected that it would of itself require me to disqualify myself. Thus, a prosecutor who acts for the Crown in criminal proceedings against the litigant may not, upon appointment to the Bench, necessarily be disqualified from dealing with any proceedings about the terms and conditions under which the prisoner is held. Nevertheless, that is not entirely a neutral factor and while the informed observer would understand that prosecutors do not strive for a conviction and do not submit for the most severe sentence, I consider it is a factor that is relevant to the decision. Of course, in this case, I was never the prosecutor who prosecuted the trial of Mr Eastman and, indeed, only appeared to uphold the conviction at the final stage of appellate review, namely before the High Court of Australia. That seems to me to fall within the principles expressed by the Full Court of the Supreme Court of South Australia in R v Garrett.

65. Nevertheless, since then, my office and I as Director of Public Prosecutions have been identified with the various inquiries on which Mr Eastman has sought to have his conviction overturned in one way or another.

66. I am conscious that I should not disqualify myself unless there is good ground. I am, however, conscious of what fell from the plurality in Ebner v Official Trustee in Bankruptcy and I consider that all the factors I have mentioned above raise a real doubt and I consider it would be prudent for me not to sit in this case. The question of necessity no longer arises since there are no interlocutory proceedings on foot and there are other judicial officers who would be able to deal with this matter.

67. Accordingly, on 2 February 2010, I directed that I not hear these proceedings and made other orders to ensure that they had the immediate case management required.

68. These are my reasons for this direction.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 26 February 2010

Counsel for the plaintiff: Self

Solicitor for the plaintiff: Self

Counsel for the defendant: Mr P Walker

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 1 February 2010

Date of judgment: 26 February 2010