Eastman v The Queen C5/1997 [1999] HCATrans 15 (12 February 1999)

IN THE HIGH COURT OF AUSTRALIA

Registry No C5 of 1997

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR R. CAVANAGH, for the applicant. (instructed by John Forrest Boersig)

MR T.A. GAME, SC: If the Court pleases, I appear with MR S.J. GAGELER for the respondent. (instructed by the Director of Public Prosecutions of the Australian Capital Territory)

MR JACKSON: Your Honours, the issue in these proceedings is whether this Court may entertain as a ground of appeal and thereafter deal with the contention that the applicant's trial for murder should not have proceeded without investigation of the issue whether he was fit to plead to the charge and to give instructions as to its defence.

May I seek to identify why the issue is one arising in this Court? It is that in both courts below those appearing for the applicant have felt themselves constrained not to bring to the attention of the court the issue of the applicant's capacity to plead and instruct and the Crown declined to do so.

KIRBY J: At one stage counsel for your client did seek to go in and see the judge. I did not quite understand what then happened. Is that a matter that is properly before us?

MR JACKSON: Yes, your Honour. He sought to see the judge, sought consent from the Crown to do it - - -

KIRBY J: See the judge in chambers, was it?

MR JACKSON: Yes.

KIRBY J: And the Crown would not give consent to communicating this concern to the judge?

MR JACKSON: Yes.

KIRBY J: But I suppose the judge was seeing the trial unfold and did see your client, so would he not have had the opportunity to make his own assessment?

MR JACKSON: Your Honour, he sees the manifestations of the underlying condition. What he does not see is the inability - or does not see or see perhaps fully is the inability of the person to convey instructions and, your Honours, that is dealt with in the affidavits to which I will come very briefly in a moment.

Your Honours, the case raises, in our submission, the legal propriety of the adoption of the course which followed. What is the duty? How can it be, we would submit, the right course for a person who believes his or her client to be incapable of giving instructions to stay silent? And how can it be the right course, in our submission, if counsel for the Crown have information before them that the accused is not mentally capable of giving instructions at the trial to go on with it without an inquiry into the mental condition of the accused.

GAUDRON J: Is that latter established?

MR JACKSON: Yes, your Honour. I will indicate where that is and may I come - the submission I have made have, in a sense, a declamatory element, I accept, but they are supported by the evidence which is before your Honours and to which I will now come. May I deal with it, your Honours, in three aspects: first, the position of those representing him at the trial; secondly, on appeal and, thirdly, the Crown's knowledge at the trial.

In relation to the first of those matters, your Honours, Mr Williams, QC, volume III, page 609, paragraph 14. I will not go through the preceding parts but come simply to paragraph 14 where he says:

It appeared to me in May 1995 that the applicant was incapable of giving any rational instructions. I believed the applicant was not fit to plead, but it appeared to be impossible to discuss the issue with the applicant and I did not do so. Around the time I was finally dismissed from the case I told the Crown Prosecutor -

and your Honours will see the remainder of that paragraph. Now, your Honours, from there one goes to - - -

KIRBY J: There would be many clients with whom it is impossible to discuss the issue in a case without questions of mental competence arising, just emotion.

MR JACKSON: Your Honour, the issue does arise sometimes. One appreciates, of course, that mental competence is perhaps a description of a range, rather than anything else, but this was a very, very bad case and your Honours will see that from the matters that precede the paragraph of the affidavit. Could I take your Honour - - -

KIRBY J: Do you say that is a mistake on the part of counsel, that he did not then raise it in open court, in the absence of the jury?

MR JACKSON: Yes, your Honour. Now it is, of course, and there are some observations of this Court to that effect, that it is the duty of the judge in any event, and what we would seek to say is that in circumstances where it is apparent - apparent on reasonable grounds, of course - to those representing an accused person that the accused person is not fit to plead - and by "to plead" I do not mean just to say the words "not guilty", but also to give instructions in relation to the course of the trial - that a point comes where it is appropriate for there to be the investigation which the legislation of the Territory contemplates.

KIRBY J: It is pretty hard on the judge. The judge comes to the case cold, does not know the accused, does not know what his mental competence is, and really has to rely on the lawyers to raise the matter.

MR JACKSON: Indeed, your Honour, and that is why the view expressed, as your Honours will see in paragraph 14, that it was not for counsel to do it is one which, in our submission, cannot be right in every circumstance. Your Honours, I was going to refer to Mr Lander, page 611, and the relevant paragraphs are paragraphs 6 to 12.

KIRBY J: Is there objection to our receiving this evidence?

MR JACKSON: Your Honour, there is an objection foreshadowed in the respondent's submissions. The validity of the objection is itself a question and that is a question whether the Court's ability, at least on the hearing of an appeal, to receive further evidence on an issue of this - - -

KIRBY J: That would be a threshold question as to whether we can receive this evidence at all.

MR JACKSON: At an appeal but, of course in the application for special leave the material is put in order to identify the question which then the Court would have to decide. But, your Honour, if I could say, without diverting from what I was immediately doing, that the Court's ability - the question of the extent of the prohibition on the Court's ability to receive fresh evidence is, itself, a question of importance. Mickelberg v The Queen certainly says that the Court cannot receive it in relation to substantive matters, but this does not go to the question whether the trial was properly conducted, this goes to the question whether properly there was a trial.

Now, your Honours, I was taking your Honours to paragraphs 6 to 12 on page 611 and also page 612 and, in particular, your Honours will simply refer to the four paragraphs on that page. Mr O'Donnell, at page 613, counsel who appeared and was then dismissed, and may I refer your Honours to the top of page 615, paragraphs 10 and 11, and then paragraph 19. I do not know that I quite satisfy the test, commencing about line 16, and then - - -

KIRBY J: It seems extraordinary that counsel faced with this behaviour did nothing to bring it to the notice of the judge. I realise that there is confidentiality which belongs to the client in the communications between the client and the barrister or lawyer, but this is something that goes to the whole legitimacy of the trial process.

MR JACKSON: There is a little more, your Honour. It is on the next page, and that is that at paragraph - you will see that Mr O'Donnell took it very seriously - paragraph 22, he went to see two other senior barristers in Canberra. Your Honour will then see it goes through to the end of that page.

KIRBY J: What do you say was the correct procedure to be followed in the circumstances?

MR JACKSON: Your Honour, there were several possibilities, no doubt, but as a practical matter, in one way or another there needed to be conveyed to the judge these things: first, the view of those appearing that they were not - that the person for whom they were appearing was someone who was not fit to plead in the sense to which I have referred, that issue being raised before the judge and that might have been done either in the absence of the jury - and probably better in the absence of the jury - or communication first given to the judge privately to indicate the nature of what was to take place. The situation that would then follow would be that the course provided for by the relevant legislation, which is the Crimes Act 1848 of the Australian Capital Territory, would then be followed. That provides in section 428E and following for there to be, where the issue of fitness to plead is raised by a party and the court is satisfied that there is a question, the court orders the person to submit to the jurisdiction of the tribunal which is provided for by the Act to have that question determined.

KIRBY J: One would normally infer that is done well in advance of the commencement of the trial.

MR JACKSON: Your Honour, it says - the condition of its operation is where, "on the trial" - and in the ordinary course of events the trial, no doubt - - -

GAUDRON J: The question can be raised at any time, depending on when the question arises really.

MR JACKSON: Indeed, your Honour. May I just say, in one of the cases to which we referred, Kesavarajah v The Queen (1994) 181 CLR 230 - it is the last one in the book of cases we have given the Court - your Honours will see at page 245, under the heading "The operation of s. 393", three Justices, including your Honour the presiding Judge, said:

It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court's duty to determine the accused's fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry.

KIRBY J: What are we to make of that? If that is the duty, that would be well known to Justice Carruthers, a very experienced trial judge, and apparently it did not appear to him as necessary to do anything about it.

MR JACKSON: Your Honour, what we would seek to say is that the judge at that point could see relatively little of the matters that gave rise to the issue. The issue inherently was one arising by reason of the inability of the applicant to communicate to those who were to appear for him his instructions as to the way in which the trial should be conducted. I put that globally, of course. But that is something that could only be based on appreciations by them. Now, in the particular case, what you see is that those who were in that situation saw that this was a person in relation to whom such a course should be taken and they were constrained for reasons, your Honours, of views taken, but reasons that in the end, if one is speaking about the position of a person who, on the evidence, is not capable of giving instructions, should not be held against him.

Your Honours, may I mention - and I will endeavour to do so very briefly - - -

KIRBY J: It is hard to understand why the Crown - if counsel came and seriously said that "I have concerns about this", that the Crown would not permit the matter to be raised privately with the judge. That seems a strange course for the Crown to have adopted to me. I mean, simply to allow it to be raised with the judge in private, so that the matter could be discussed and in a sensible way some resolution found to how it was going to be dealt with according to law.

MR JACKSON: Indeed, your Honour, we accept that. May I take your Honour to paragraph 27 on the next page, page 618. I do not think I have gone there. Your Honours will see in the second paragraph on page 618 that he refers to Dr Milton. If I could just go, to jump the question of appeal for the moment, but go to the position of Dr Milton. Dr Milton was a psychiatrist who had examined the applicant on many occasions before the trial. I am sorry, I said "examined". He reported on those occasions. Could I give your Honours three references as to his view as to his condition. First, in volume III, page 633 - - -

KIRBY J: Are these all ex post - after the trial?

MR JACKSON: Oh no, this is before. These are documents in the possession of the Crown at the time of the trial.

KIRBY J: Does that not rather suggest that the Crown Prosecutor, who was also very experienced, took the view that this was simply a diversion, wasting time?

MR JACKSON: A bit of a diversion, your Honour. If one looks at the top of page 633 where what he said was, paragraph 70:

I am of the opinion that Eastman manifests a severe form of the condition known as Paranoid Personality -

Then, at page 638 - - -

KIRBY J: But there must be many litigants who feel paranoid or even have a paranoid personality who are not incompetent to plead.

MR JACKSON: At page 638 he said he was insane, top of page 638, your Honour, paragraph 27:

I think he should now be regarded as psychotic (i.e. insane) -

and he describes that through that paragraph.

KIRBY J: Was that in the possession of the Crown at the time that the application was made by counsel to see the judge privately, that the doctor was saying he regarded him as insane?

MR JACKSON: Yes, your Honour. These are reports over a long period of time all before the trial. You will see at page 672, commencing at about line 10, after referring a little earlier to detailed description of the condition known as paranoid personality disorder, he said:

Mr Eastman has demonstrated virtually all those features from time to time. After having listened to various tapes of Mr Eastman talking to himself and after having seen him so grossly misinterpret innocent remarks in a sinister fashion, I believe he is, for practical purposes, psychotic, i.e. out of touch with reality.

And you will see a little further down the page about line 24 "a long history" -

KIRBY J: He goes on to say:

it would be difficult to substantiate this in terms of the present Mental Health Act -

Now, is that the matter that may have motivated the Crown?

MR JACKSON: It is difficult to see that, with respect. It may be it motivated them; if so it was a wrong motivation because - - -

KIRBY J: In any case, it tendered an issue that had to be dealt with according to law.

MR JACKSON: Of course, your Honour, that is what I am seeking to say. May I say briefly in relation to the position on the appeal, although the three people who were engaged by him to deal with the appeal all expressed the view that he was suffering from some - that they wanted to raise this issue, he would not permit it to be raised at the hearing of the appeal. You will see that in Mr Collaery at 683, paragraphs 6 to 10; Mr Odgers, page 680, and Mr Boe, page 678, lines 5 to 12. Your Honours, the position - - -

KIRBY J: But if the question is the client's capacity to perceive their own mental state, is that final that the client does not permit the matter to be raised or is there some separate duty on the part of counsel to then bring it to the notice of the judges so that it can be dealt with according to law?

MR JACKSON: Your Honour, our submission is that there is such a duty and that this case miscarried because it was not performed. May I say finally in relation to any material, at page 716 you will see Dr White's report for the purposes of these proceedings, in effect, his conclusion line 14. He said:

Chronic Paranoid Schizophrenia.....many years.

It is my view that he had evidence of severe incapacitating mental illness before the trial, during the trial, and after the trial.....

In my view, he was at times so disturbed that he was unfit to plead.

And your Honours will see that he says he has now improved to a degree and would now be fit to plead.

Your Honours, the short position is as I submitted earlier. This is a case where, in our submission, at relevant times the applicant was not in a position - an issue was raised of the applicant's capacity to plead at the trial and to give instructions in relation to the trial. It was an issue which should have been dealt with. It was not. It is, of course, a case of the utmost seriousness on all sides and one where it would be appropriate for the Court to consider whether that issue is one which should be determined and, your Honours, needless to say, in the end it may well be that the view taken by the Court is that some aspect of consideration of it, if the Court were otherwise in our favour, would be something to be dealt with by the Federal Court on appeal.

GAUDRON J: Thank you, Mr Jackson. Yes, Mr Game.

MR GAME: Your Honours, our primary position is that none of the material that is sought to be put before the Court is receivable.

GAUDRON J: That is a submission more properly put on an appeal than on an application for special leave to appeal, is it not?

MR GAME: No, your Honour, because if the High Court has not power to receive fresh evidence, then it has no - - -

GAUDRON J: We frequently receive material on an application for special leave that is not received on an appeal because until the special leave is granted, there is no proceeding in this Court.

MR GAME: Well, your Honour, section 33 of the Federal Court Act makes a condition of an appeal being entertained, a grant of special leave. Now - - -

KIRBY J: I suppose you can put it that it knocks away the foundation on which, if special leave were granted, it would have any utility.

MR GAME: Yes. If the material could not be received on the appeal, then there would be no basis - - -

GAUDRON J: Is that not a very interesting question? These are proceedings, are they not - I mean, if one turns ones mind back, the verdict in this case would have been challenged by a writ of error, if it were to be challenged on the ground of unfitness to plead, would it not?

MR GAME: No, your Honour. Writ of error only went to errors on the face of the record. There would have been no review of what happened in this case at Federation.

KIRBY J: Does the Crown say to this Court that although it had material before the trial concluded that said that Mr Eastman was insane, that there is no way that that matter can be placed before the court? That seems an extraordinary notion.

MR GAME: Your Honour, we do not put that proposition - sorry, we put that proposition now in this Court, yes, but that material was in the possession of the defence by 17 August 1995.

KIRBY J: But they asked that this matter be raised with the judge in chambers, presumably, so that some way of handling the problem that the client was refusing to allow it to be raised, but that counsel were concerned about it. It does not seem, if I could put it this way, to be normal that the Crown would forbid the matter being raised with the judge.

MR GAME: The only problem was raising matters in chambers where Mr Eastman would seek disqualification of every person that would either sit on any case where there was any communication of any kind, so that the point that was raised was that the application should be made in open court.

KIRBY J: Is that what the evidence says, that that was the Crown's response to the application by the accused's counsel?

MR GAME: We have not put any evidence on for a particular reason, your Honour, and we actually raised that in a motion before your Honour Justice Gaudron, but we do not accept the material in these affidavits. We particularly do not accept the conclusion of Dr White. In fact we would seek to demonstrate that it was quite without cogency and that it bears no relationship to what actually happened and that the factual basis of Dr White's evidence would simply fall away upon analysis.

KIRBY J: But is not what Justice Gaudron said to you correct, that the issue tendered is an important question as to how this should be handled in the course of a criminal trial? Here we have very senior counsel, two of whom are now judges, saying one thing, and at least on the face of it, it seems to lead to an extraordinary result, that the issue has not been ventilated in any formal or proper or lawful way.

MR GAME: Your Honour, what the applicant says - and I will come to the question whether or not the Court should reconsider Mickelberg in a moment, but what is being put is, in effect, that he could not give instructions and that when he represented himself he was unable to do so. In respect of the latter, he only represented himself for a short period. He was, in truth, represented for five months by Mr Terracini, with junior counsel Mr O'Loughlin. There is no affidavit material from either of those counsel. There is no suggestion - these barristers who have put on affidavits, one of them did not appear at all except at the very commencement, the other one cross-examined two witnesses. They were side players in a drama that went on for six months, your Honour.

Now, the absence of any affidavit from trial counsel speaks eloquently of what actually happened and I should say that a glance at what Mr Eastman had to say on difficult questions of law demonstrates the completely specious nature of any suggestion that he had a dim understanding of legal issues. Mr Eastman raised the single question of law, he ventilated, he thought up the serious question of law that was ventilated on the appeal which was the hearsay use of Mr Klarenbeek's evidence. He thought that point up. He had a very gifted understanding of the law and he was a very eloquent speaker when he spoke to the jury, both in his address and in legal argument in the summing up. Now, that is the spectre that we would seek to demonstrate to the Court if one actually got into this issue. But it can be demonstrated very quickly.

What the Court is being asked to do, in substance, is to reconsider Mickelberg. Firstly, if I could just - - -

GAUDRON J: Or consider whether it applies in this situation.

MR GAME: Yes, but your Honour, the proposition which is put to the Court is that there is an exception to Mickelberg in relation to matters that go to the propriety of the proceedings, in substance. Now, at Federation there were only two methods of review: one was by Crown Cases Stated from the Crown Cases Stated Act and the other was by writ of error. Writ of error would not apply, Crown Cases Stated would not apply. The only other method was by motion for a new trial which could not apply because it was applying different circumstances than these. The Criminal Appeal Act was enacted because of the incapacity of Justice Stephen in a case by reason of insanity - it is the very type of case which brought about the enactment of the Criminal Appeal Act - - -

KIRBY J: We are talking about the word "appeal" in a constitution.

MR GAME: Exactly, your Honour, but this Court has held, over and over again, that section 73 is a reference not to original jurisdiction but to appellate jurisdiction in the strict sense. Mickelberg itself was a reconsideration of all of the authorities. Mickelberg was the reconsideration. As soon as one creates an exception for matters that go, in effect, to the propriety of the proceedings, then one introduces - - -

GAUDRON J: Is it the propriety of the proceedings or whether there were in law any proceedings at all?

MR GAME: A question as to fitness does not raise the question whether or not there were any proceedings at all.

GAUDRON J: Does it not?

MR GAME: But, your Honour, a question of actual bias would raise the same issue just as, your Honour, a question of incapacity of the judge would raise just such a question, just as a question of a judgment obtained by fraud or by dishonest evidence would give - a judgment obtained by abuse of process - the categories are wide and they are the categories of material covered by section 6 of the Criminal Appeal Act which concerns miscarriages of justice.

KIRBY J: Mr Game, we have to deal with this case because there has been referred under the Constitution into a Full Court a constitutional question. So the Court is going to have to devote time to Mr Eastman's case. The real question is the appropriateness and marginal utility of adding these issues which are not without interest and importance. Speaking for myself, I find Justice Deane's dissenting opinion in Mickelberg very convincing. I mean, you just cannot interpret the word "appeal" in a Constitution as if it is bound into the statute law of the 1880s. It seems to me, with every respect, to be a ridiculous notion. This is a Constitution intended to endure indefinitely.

MR GAME: Your Honour, the decision in Mickelberg was a culmination of decisions which affirmed that "appeal" in section 73 was an appeal in the strict sense.

KIRBY J: I know what Mickelberg says but I just, speaking only for myself, think that it may be time that we reconsidered it, if it excludes the possibility that a citizen of this country can come to the ultimate Court and have material placed before it as he or she could to a Court of Criminal Appeal.

MR GAME: Your Honour, I should say this also: it has not been doubted in subsequent decisions, including Gipp in which your Honour was a party, and in which your Honour appeared to accept the proposition that Mickelberg - - -

KIRBY J: You read carefully what I said because I was very alert to this issue.

MR GAME: Your Honour, if it be the case that "appeal" is - the cases accept, we would submit, a distinction between appellate and original jurisdiction. Your Honour Justice Gaudron accepted such in Mickelberg. Once one accepts that proposition then one has to have a specific provision enabling the introduction of fresh evidence for there to be fresh evidence receivable on appeal. Those propositions have been accepted as immutable in respect of section 73 of the Constitution. Now, the exception that my friend puts is a very large category of cases. It is the category of cases which covers all of those circumstances where, in effect, the adversarial process, it is submitted, has broken down.

Now, we do not accept that the adversarial process has broken down and we would wish to ventilate that in a practical way and we would say that it would be quite unfair for a respondent to come along to this Court and be confronted, in effect, with a granting of special leave, upholding of an appeal, and remitter for the purpose in effect of ventilating evidence in the Federal Court when we say we can meet this in limine. We can meet this with evidence. The spectre is of this Court having Dr White in the witness box and cross-examined on his conclusions, and Mr Terracini and Justice Adams. That is the spectre and that is the position which has been steadfastly - - -

KIRBY J: But you would raise the matter at the threshold. We have to deal with the case that is referred into the Full Court. So far as these issues are concerned, you would raise at the threshold what you say is a fatal flaw in the applicant's case and if you get up on that, then that is the end of that part of the case. But if you do not, then the Court can refer into the Federal Court the question of the factual determination.

MR GAME: Yes, quite.

KIRBY J: There is no big spectre of Dr Milton being in our witness box.

MR GAME: With respect, your Honour - - -

KIRBY J: Anyway, I do not find that such a spectre at all. It would be nice to see a witness every now and again.

MR GAME: I might find it a little intimidating, cross-examining the witness before seven Judges, but that is another question, your Honour.

GAUDRON J: I think the real question is this: if one were to determine on a special leave application that the evidence could not be received, one would in fact be determining the substance of the appeal whereas - - -

MR GAME: No, your Honour. The question is whether or not it is timely to review Mickelberg. If not, then the Court would - - -

GAUDRON J: For my part, you see, I am not entirely convinced that Mickelberg applies that you keep asserting.

MR GAME: The proposition that Mickelberg is authority for is that the Court must consider the appeal on the material that was before the court below. That seems to be fairly unambiguously stated.

GAUDRON J: But equally, there seems to be a notion to be found in some of the cases that there are situations in which there is no trial at all, that things so go wrong that one does not even get, for example, to the proviso in the criminal appeal provisions. Now, if that notion is developed, it is not at all clear that - - -

MR GAME: But ironically that is the class of cases that was picked up by the miscarriage of justice provision in section 6 of the Criminal Appeal Act.

GAUDRON J: I realise that, but I am just saying that there is also this notion in other cases of no trial at all.

KIRBY J: Cannot one conceptually draw a distinction, even assuming that Mickelberg is the principle, between facts that go to the guilt of the accused and facts which go to the way in which the process was constituted as a trial? I mean, one can see a difference between the two.

MR GAME: It is very difficult, your Honour, in a case - this case is a good example. At trial, the defence was seeking, as hard as they could, to resist any suggestion that there was a connection between Mr Eastman's mental illness, dangerousness and the offence. And his mental illness was something that, in a sense, the jury knew about because they knew about the medical tribunal and they knew about the various doctors who had given evidence and so forth. That explains why the Dr Milton material was so resisted and why, on appeal, Dr Milton's evidence was repudiated by the defence. Then we come to the appeal - it is like the roadrunner, we are going in this direction, and now we are going in that direction there. In fact, the material is being used, in effect, as a foil when it was attempted to be distanced - the defence attempted to distance themselves from this type of material as hard as they could at the trial. A lot of the appeal was in fact about how his conduct in court was to be dealt with, how the Dr Milton material was to be analysed. In effect, what is being put now is the converse of that. When one couples that, as I said to begin with - - -

GAUDRON J: Can I ask this question?

MR GAME: Yes.

GAUDRON J: Although this point was not raised in the Federal Court, do I take it from what you have said that the Dr Milton material was before the Federal Court?

MR GAME: Yes, your Honour.

GAUDRON J: That may raise a question in itself, independently of Mickelberg, may it not, having regard to what has been said - I think it was in Gipp - as to whether the Federal Court should perhaps itself have raised the issue.

MR GAME: Your Honour, as is said, the difficulty there was that the defence counsel - firstly, we have not put on affidavit a report from Dr Milton which we have which says that he was fit to plead, as it happens. The Dr White material ultimately - - -

GAUDRON J: Although he did not ever interview him, did he?

MR GAME: He never interviewed him, no. But as I said, the Dr White supplementary report merely says that on some occasions, unidentified, he was unable to instruct counsel. The second report is highly qualified. It is clear that Dr White seems to have been under a misapprehension about the - he seems to have thought that the accused represented himself substantially, or it is not entirely clear how much of the time but, your Honour, as to this question about whether or not the Dr Milton material raised a question for the Court to consider for itself, I should say, firstly, that is not how this application is put. Secondly, it is not how it was put in the court below. Further, there is the passage that your Honour Justice Kirby has already referred to at page 672 where Dr Milton said:

it would be difficult to substantiate this in terms of the present Mental Health Act.

Senior counsel Mr James and Mr Odgers did not raise the matter and presumably they were aware of their obligations and no suggestion has been made that they were not and they somehow failed in their obligation to raise the matter with the court. So we would submit again, regardless of whether or not the Gipp question which is the power of the Court to - and certainly Justices McHugh and Hayne in Gipp thought that there was a real question about whether this Court had power to entertain a question just such as that raised in Gipp - but as I said, for those sorts of reasons, we would submit that that does not properly arise, and the further reason which I have already given, that the Dr Milton grounds were rejected specifically in the Full Federal Court for the reason that, at the end of it, the defence said, "We repudiate Dr Milton, we do not accept a word that he has to say." It has to be also contemplated - - -

KIRBY J: Was that on the basis of the instructions of the accused?

MR GAME: Counsel, at the trial of the accused.

KIRBY J: That may be circular.

MR GAME: It may be so, your Honour, but the accused made some tactical decisions which took extraordinary advantage of the absence of counsel or non-presence of his counsel at certain times. For example, the whole of the - and that is why I say context is so important. There was a Browne v Dunn ground of appeal. The Browne v Dunn ground of the appeal concerned the fact that a point was made in respect of absence of cross-examination of Mr Ninness, but the Browne v Dunn point was offered up by Mr Terracini as a way of allowing Mr Eastman, not having cross-examined Mr Ninness although he was recalled to do so on several occasions - Mr Eastman then gave evidence in which he, in effect, ventilated the whole of the Mr Ninness issue in evidence in his own evidence.

So, as I say, there is a whole tactical aspect to this. The Klarenbeek point is a very good one too. As I said, Mr Terracini got the Klarenbeek evidence in for a non-hearsay purpose. Mr Eastman then took advantage of it, sought to argue the hearsay purpose. In order to address the ground on appeal, we had to go back and get all of the correspondence, the exchanges, and put them on evidence to show what the true situation was. Mr Eastman himself was a quite masterful tactician.

KIRBY J: So you were tendering evidence on the appeal.

MR GAME: Absolutely. We were tendering evidence to show - - -

KIRBY J: It is only in this Court that no one can tender evidence on appeals.

MR GAME: Your Honour, there were lorry loads of evidence tendered on the appeal in this case. The appeal went for two weeks, and that is to say the least of the amount of time that was actually devoted to this case. This is very much a tail-end attempt to in effect invert what actually happened, both at trial and on the appeal. As I said, we would seek to demonstrate in due course that it bears no relationship to the substance of the matter.

Now, I see that the red light is on. If, against my submissions, the Court proposes to refer it in one form or another to the Full Court, could I make a suggestion about - if it is to be referred, could I say this simply that, if against our submissions there is either to be a grant of special leave or the whole application referred to a Full Court, our proposal would be that the issue at this point be restricted to a consideration of whether or not Mickelberg is to be reconsidered and on what terms, that is to say - see, in order that one does not get into - we are in effect trying to save the Court from being drowned with affidavits.

GAUDRON J: I understand it, but in a case such as this it is a little difficult to pre-empt what a Full Bench might do because, if the matter is referred or leave granted, we are in substantially unchartered waters and that would be very difficult, I would think.

MR GAME: Yes, your Honour, but we have not - - -

GAUDRON J: But if, for example, the course were taken that instead of there being a grant of special leave the whole application was referred to the Court, there would then be no prejudice to you as to what might or might not be raised.

MR GAME: I have in mind this, for example, your Honour. Apart from the evidence that we might put on, we would seek to demonstrate that the material is not cogent, which is one of the conditions of receipt of fresh evidence. Now, in order to do that, one needs to in effect embark on another exercise that is not contemplated by the - in one sense we would say it is not a suitable vehicle to give special leave.

GAUDRON J: Oh, you would not - if that were the sole criteria in these matters you would not have to put that argument.....to persuade us that it would be better not to, in a sense.

MR GAME: What I am saying is that we would seek to sweep away the cogency of the material that has been put.

KIRBY J: What you are saying is that the Court should deal with the threshold question of whether it receives this material at all and whether it can receive this material at all under the Constitution.

MR GAME: Yes.

KIRBY J: That will at least have the attraction, before the Full Court, I would imagine, of avoiding the truck loads of evidence that you raise as a spectre.

MR GAME: That is our suggestion, if the Court pleases.

KIRBY J: That might be better done by the Full Court, rather than by us.

MR GAME: That leaves us with a practical difficulty, and it leave a practical difficulty for the Registrar in terms of appeal books and so forth, so it is a matter that would really have to be - - -

KIRBY J: Could that not be the subject of directions at a later time?

MR GAME: It could be, but this matter is set down in late March, so it is not - but anyway I just raise that for the Court.

GAUDRON J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the first matter is this: our learned friends rely on Mickelberg and section 73. However, that carries within it a question because this is not an appeal from a State court, of course, this is an appeal from the Full Court of the Federal Court - - -

GAUDRON J: Which was exercising - - -?

MR JACKSON: Section 122 jurisdiction as the law currently stands. So that the issue is not quite the same as Mickelberg and it may well be that entirely different considerations are applicable. That is the first thing.

GAUDRON J: It might be that entirely different considerations were applicable even if it were just federal jurisdiction.

MR JACKSON: Indeed, your Honour.

GAUDRON J: Because it was said that - I think one of the bases for the decision in Mickelberg was that it would be a usurpation of State jurisdiction.

MR JACKSON: Yes. And of course, ex hypothesi, there were no Federal Courts at the time of Federation. Your Honours, the second thing is that one sees in relation to the duty of counsel an observation in The Queen v Beynon (1957) 2 QB 111 at page - I am afraid, your Honours, the page numbers have been chopped off in this copy, but it is about the second page of the reasons for judgment where what was said by Justice Byrne was to adopt what had been said in R v Dashwood, namely:

"That matter was present to the minds of the appellant's counsel when he pleaded `Not Guilty.' It was open to them at that time, if they had so desired - indeed, it was their duty if they so thought - to invite the judge to do what he would have been bound to do, namely, direct that the issue of the appellant's ability to plead should be tried by a jury."

KIRBY J: What do you say about the point that no affidavit has been tendered for Mr Terracini who is a very experienced trial counsel and had a lot of time involved in the case?

MR JACKSON: Your Honour, one thing I would say in relation to that is if your Honours go - your Honours would think from what has been said that Mr Terracini's time was of seamless time appearing as counsel for the applicant. That impression would be dispelled by looking in volume II of the application book in a passage which commences at page 462. Your Honours will see at about line 7 on page 462 an introduction - where their Honours start to say how representation went during the trial. Now, in particular, you will see when you come down to line 36 that Mr O'Loughlin's instruction is then terminated.

Thereafter, Mr Terracini and Mr O'Loughlin moved in and out of the trial as their instructions were first withdrawn and then reinstated.

Now, your Honours, if one looks at the next page you see the litany of Mr Terracini's instructions being terminated, reinstituted and so on. Then line 33:

The circumstances under which Mr Terracini's instructions were terminated for the last time.....were quite astonishing.

You will see that goes through there. Then, your Honours, without labouring the point, at page 464, line 24, in the paragraph there commencing, you will see some observations made about what happened to the - - -

GAUDRON J: Was this material before the Full Federal Court?

MR JACKSON: This is the Full Court's reasons, your Honour.

KIRBY J: Does that not give rise to the inference that Mr Terracini had a lot of experience with unusual conduct, at least, on the part of the applicant and yet did not provide any affidavit that that raised any question in his mind as to the applicant's fitness to plead?

MR JACKSON: It raises a question that Mr Terracini may well have declined to give an affidavit in relation to the matter. It simply means that issue is not one on which there is material before the Court, apart from what appears in the reasons which demonstrate, your Honours, one would have thought to any lay person most serious doubt about the ability of the person to give instructions to those appearing for him.

KIRBY J: Is not the point raised last by Mr Game a correct one, that is to say, at least prima facie in your way stands the authority of Mickelberg, prima facie? You want to distinguish it or argue about it, but it seems to stand in your way. Now, if that is the case, and as we have to deal with the other matter referred into the Full Court, is not the appropriate course for this Court now constituted, rather than to provide special leave, to simply refer your application, it being one with arguability, into the same Full Court as is going to deal with the matter already referred.

MR JACKSON: Your Honour, that is a possible course, I accept that, of course. What I would simply say about it is this, that the issue - for the Court to grant special leave now, it involves no expression of view by the Court on the question whether this material is admissible on the hearing of the appeal. The appropriate course, in our submission, would be, if the Court regards the matter as being otherwise sufficient to merit the grant of special leave, to grant special leave on the question and then that issue is determined, as in Mickelberg, of course.

GAUDRON J: Thank you.

Gentlemen, the course the Court will take is to refer the entire application to a Full Court. There will be a directions hearing at some time to determine what course will be taken on the adjourned further hearing, as it were, of the application to the Full Court.

Is it thought that this would proceed at the same time as the constitutional matter or - - -

MR GAME: We were given a tentative date of 25th. At best we were told the matter would take two days if it is the constitutional matter and three if this was to be referred. So, is the 23rd, 24th, or 23rd, 24th and 25th, as I understand it.

MR JACKSON: Yes, your Honour, we would prefer it to go on at the same time.

GAUDRON J: Yes, thank you. There will be some indication from the Registrar about the listing and also about a directions hearing in due course.

AT 10.22 AM THE MATTER WAS CONCLUDED