Eastman v The Hon Justice Anthony James Besanko and The Attorney-General for the Australian Capital Territory [2010] ACTSC 15 (19 March 2010)

Last Updated: 20 April 2010

DAVID HAROLD EASTMAN v THE HON JUSTICE ANTHONY JAMES BESANKO and THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY [2010] ACTSC 15 (19 March 2010)

PRACTICE AND PROCEDURE – application by appellant to a member of a Full Court to disqualify himself from sitting on the hearing of his appeal – express allegation of actual bias – allegation of apprehended bias inferred from submissions – whether opinion expressed about preparedness of appellant revealed actual or apprehended bias – whether refusal to make an order extending custodial arrangements revealed actual or apprehended bias – no actual or apprehended bias found – application refused.

David Harold Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10

Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588

Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209; (2002) 118 FCR 360

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

Eastman v R (1997) 76 FCR 9

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

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

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Crimes Act 1990 (ACT)

Supreme Court Act 1933 (ACT)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 of 2009

No. SC 362 of 2008

Judge: Dowsett J

Court of Appeal of the Australian Capital Territory

Date: 19 March 2010

IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2009

) No. SC 362 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DAVID HAROLD EASTMAN

Appellant

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

Respondent

AND: ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

Judge: Dowsett J

Date: 23 October 2009

Place: Canberra

Dowsett J declined to disqualify himself in response to an application by the appellant that he do so.

IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2009

) No. SC 362 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DAVID HAROLD EASTMAN

Appellant

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

Defendant

AND: ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

Judge: Dowsett J

Date: 19 March 2010

Place: Canberra

REASONS FOR DECISION

DOWSETT J:

1. On 3 November 1995 David Harold Eastman (the appellant) was found guilty of the murder of Assistant Commissioner Winchester and sentenced to life imprisonment. Mr Eastman appealed against his conviction. His appeal failed: see Eastman v R (1997) 76 FCR 9. He then unsuccessfully appealed to the High Court: see Eastman v R [2000] HCA 29; (2000) 203 CLR 1 and Re The Governor, Goulburn Correctional Centre; Ex Parte Eastman [1999] HCA 44; (1999) 200 CLR 322.

2. In June 2000 Mr Eastman applied for a judicial inquiry pursuant to s 475 of the Crimes Act 1990 (ACT) (the “Crimes Act”), into his fitness, at the time of his trial, to plead to the charge of murder. On 7 August 2001 Miles CJ granted his application and ordered that a magistrate conduct such an inquiry. That decision was subject to two separate actions in the Supreme Court by the Director of Public Prosecutions. In the first the Director sought a declaration that the inquiry was outside the power conferred by s 475 of the Crimes Act. In the second he sought judicial review of the decision to order an inquiry. Those proceedings failed at first instance (see Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588) but were allowed by a majority of the Full Court on appeal: see Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209; (2002) 118 FCR 360. That decision of the Full Court was reversed by the High Court: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318. Miles CJ in fact conducted the enquiry himself, concluding that it had not been established that Mr Eastman was not fit to plead. Accordingly his Honour did not recommend any executive action to set aside the conviction: see Inquiry under s475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman dated 6 October 2005. Miles CJ resigned at some time prior to the delivery of his report, but that fact has no relevance for present purposes.

3. Section 475 has been repealed and replaced by Pt 20 of the Crimes Act. The Pt 20 regime is similar in concept to the old s 475 in that it provides a mechanism for an inquiry in relation to a “doubt or question” concerning a person’s conviction. It is accepted that Mr Eastman was entitled to apply pursuant to the new regime. On 2 February 2005 Mr Eastman made such an application. That application was heard by Besanko J. On 4 April 2008 his Honour concluded that an inquiry should not be ordered: See Decision and Reasons in relation to an Application for an Inquiry under Part 20 of the Crimes Act 1900 (ACT). On 6 May 2008 Mr Eastman sought review of that decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and by way of an order pursuant to the Supreme Court Act 1933 (ACT), effectively an order of the kind previously described as a “prerogative writ”. Those proceedings were dismissed by Edmonds J: see David Harold Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10. Mr Eastman now appeals from that decision.

4. On the first day of the hearing of this appeal Mr Eastman was represented by counsel. However counsel indicated that Mr Eastman would himself be arguing one part of the appeal involving an allegation that the decision of Besanko J was bad for a ground commonly described as “Wednesbury unreasonableness”. I indicated in earlier reasons in these proceedings, dealing with an application by Mr Eastman concerning his conditions of imprisonment, that the Court allowed Mr Eastman an indulgence in permitting that course. I now consider that he was entitled to do so. The matter is of no present significance.

5. Late on the first day of the hearing Mr Eastman withdrew his instructions to counsel. He indicated that he proposed to make further submissions himself. He subsequently referred to an order made by Higgins CJ concerning the conditions under which he was being detained which was to expire on that day and asked that we extend it. We declined to do so. My reasons for joining in that decision have been published separately. It is in those reasons that I refer to the “indulgence” granted to him by the Court.

6. When the hearing resumed on the following day Mr Eastman asked each member of the Court to withdraw from the hearing of the appeal. At that stage he seemed to be alleging actual bias against each member. However his submissions addressed both apprehension of bias and actual bias. In my case he submitted that I had made a serious accusation against him in my reasons given on the previous day, which accusation I knew to be false, or likely to be false. This was a reference to a statement in my reasons that he had already had an adequate opportunity to prepare his submissions and would only have to add the finishing touches to them. It is submitted that I poured scorn on the suggestion that he needed to prepare. He said that until Monday 19 October 2009, that is the Monday prior to the hearing (which occurred on the Thursday and Friday), he had expected that his counsel would make the necessary submissions. He also complained that I sought to excuse alleged breaches of the order made by Higgins CJ concerning the conditions of his detention, and that I had said that the authorities might be unable to prevent these breaches. This was said to be a reflection on the Chief Justice, “because obviously he would not be so silly as to make an order in terms which the respondent of the order was unable to carry out.” Mr Eastman seems to submit that this Court should simply have extended the orders made by the Chief Justice.

7. It is true that I expressed the opinion that Mr Eastman had a close knowledge of his own case. In view of the history of proceedings involving him, any other view would be fanciful. Further, he made it clear that he considered that his counsel did not have a full grasp of the material, and that he had expected to review counsel’s written submissions in order to ensure their correctness, accuracy and adequacy. In any event he had from Monday until Thursday to prepare his submissions on the Wednesbury unreasonableness point.

8. As to the capacity to enforce the Chief Justice’s order, Mr Eastman indicated on a number of occasions, that notwithstanding the order, he had continued to be harassed in the prison. The order made by the Chief Justice appeared to me to involve a significant intervention in the way in which the prison authorities were performing their functions, both with respect to Mr Eastman and with respect to other prisoners. Without in any way casting doubt upon the appropriateness of the order, it was for this Court to consider whether or not it should be extended. The prison authorities did not consent to that course, but indicated that they did not propose to change the arrangements then in place. The order required that various people, presumably prisoners, be held in particular parts of the prison and not be permitted to contact or otherwise interact with Mr Eastman, and that certain prison officers not have contact with him or participate in his case management, other than in an emergency.

9. I accept for present purposes that the Court has power to make such an order if it is necessary in order to ensure that the administration of justice is not unduly prejudiced. However to become involved in the regulation of a prison is a serious matter, as I have no doubt the Chief Justice understood. It was however for this Court to consider whether it was appropriate that it extend such unusual intervention. In my own view, particularly given the indication given by the prison authorities that existing arrangements would remain in place, it seemed inappropriate to do so.

10. Whilst I can understand that Mr Eastman may have been dissatisfied with my view as to the appropriateness of his continuing to have the benefit of those arrangements, I do not accept that my reasons demonstrate any form of bias, or that they could give rise to an apprehension of bias in any fair-minded person. In particular, I see no basis for inferring that I would be biased, or that there would be an apprehension of bias in my continuing to hear Mr Eastman in respect of the substantive matters arising in connection with this appeal. In those circumstances I declined to disqualify myself from further participation in the hearing, saying that I would give reasons later. These are those reasons.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Dowsett.

Associate:

Date: 19 March 2010

Counsel for the Appellant: JG Renwick until approximately 4.04pm on 22 October 2009

Solicitor for the Appellant: Jackson Lalic Lawyers until approximately 4.04pm on 22 October 2009

The Appellant appeared in person from about 4.04pm on 22 October 2009.

The Respondent filed a submitting appearance.

Counsel for the Intervenor: JD Harris SC and DJC Mossop

Solicitor for the Intervenor: ACT Government Solicitor

Date of hearing: 23 October 2009

Date of decision: 23 October 2009

Date of reasons: 19 March 2010