Eastman v Director of Public Prosecutions of the Australian Capital Territory & Ors C10/2002 [2002] HCATrans 538 (28 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Registry No C10 of 2002

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY

First Respondent

IAN PIKE

Second Respondent

ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

THE HONOURABLE CHIEF JUSTICE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Fourth Respondent

Reasons for decision

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 OCTOBER 2002, AT 9.35 AM

Copyright in the High Court of Australia

__________________

HER HONOUR: Before reading my reasons for decision in this matter on to the transcript, I should indicate that some two minutes before coming into Court there was on my fax machine a signed copy of submissions from the DPP which vary, I am told, in some respects from those that were previously submitted. I have not read those submissions. I do not propose to receive them. I will hand them now to the Registrar.

On 4 September of this year, Justice McHugh ordered expedition of Mr Eastman's application for special leave to appeal from a decision and order of the Full Federal Court dismissing his appeal against a judgment of the Supreme Court of the Australian Capital Territory. That application is to be heard in Canberra on 15 November 2002. Mr Eastman has filed a notice of motion seeking certain orders in relation to that application.

The orders sought are as follows:

"1. The Applicant be brought to Canberra for the hearing of the Chamber Summons.

2. The Applicant be returned to Goulburn jail immediately, and remain there until the conclusion of all his legal proceedings in Canberra.

3. The Applicant be brought to Canberra for the hearing of his special leave application on 15-11-02.

4. The Applicant's 10 cartons of legal papers, recently sent to Sydney, be returned to him immediately."

It is convenient to deal first with the question of Mr Eastman's legal papers. On 27 September, I directed the Attorney-General for the Australian Capital Territory to take all such steps as were within his power to ensure that Mr Eastman had access to those papers. Although Mr Eastman has certain complaints as to the manner in which his papers were returned, it is common ground that they have, in fact, been returned to him. Accordingly, no further order need be made on that issue.

So far as concerns Mr Eastman's application to be brought to Canberra for the hearing of the chamber summons, no such order was or will be made. The matters raised by the chamber summons are not such that they cannot be dealt with adequately by way of written submissions.

Orders 2 and 4 in the notice of motion are, to some extent, related. Leaving aside the question whether the Court has power to order that Mr Eastman be brought to Canberra for the hearing of his special leave application, such an order, in my view, should only be made if an applicant cannot be legally represented and it is clear that the issues raised cannot be adequately dealt with by written submissions.

The applicant's additional written submissions of 1 October 2002 acknowledge that he was granted legal aid for the purposes of his special leave application, but assert that the grant is "subject to unacceptable conditions" and that even if those conditions are varied he "cannot get adequate access to [his] solicitor while in Lithgow". The submissions further assert that the applicant "cannot, and will not, utilise any grant of aid under these conditions".

Although given an opportunity to submit further written submissions, Mr Eastman has not indicated in what respect the conditions imposed on the grant of legal aid are unacceptable. Nor has he explained why he cannot get adequate access to his solicitor while in Lithgow. The question raised by the special leave application is a pure question of law. It does not require detailed instructions or analysis of factual issues. Accordingly, I am not satisfied that Mr Eastman cannot be properly represented pursuant to the grant of legal aid which he has obtained.

It may be that Mr Eastman will maintain his refusal to avail himself of the grant of legal aid and, thus, will be unrepresented at the hearing of the special leave application. If so, there is no reason why the application cannot be determined by reference to his written submissions. Mr Eastman is clearly intelligent, articulate and well able to identify and address the issues raised by his application. Should he wish to supplement the submissions already filed, I grant leave to him to file further submissions by 10 November 2002. There is nothing to indicate that Mr Eastman is any less able to prepare further submissions in Lithgow than he would be in Goulburn. Accordingly, even if there is power to so order, no order should be made for his removal to Goulburn for the purposes of his special leave application.

To the extent that the notice of motion seeks an order that he be removed to Goulburn for purposes other than the special leave application, this Court clearly has no power, at this stage of the proceedings, to so order.

Leave is granted to the applicant to file further written submissions by 10 November 2002. Otherwise the notice of motion is dismissed. No order as to costs.

The Registry will ensure that a copy of those remarks is sent to Mr Eastman. Thank you.

AT 9.40 AM THE MATTER WAS CONCLUDED