Eastman v Director of Public Prosecutions of the ACT & Ors C10/2002 [2002] HCATrans 591 (15 November 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

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

Fourth Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 11.15 AM

Copyright in the High Court of Australia

__________________

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by the applicant)

MR N.J. WILLIAMS, SC: If the Court pleases, I appear for the first respondent. (instructed by the Director of Public Prosecutions (ACT))

MR D.J.C. MOSSOP: If the Court pleases, I appear for the third respondent. (instructed by the ACT Government Solicitor)

GAUDRON J: Yes, thank you. I have a certificate from the Deputy Registrar who certifies that she has a letter from Kevin Holmes, solicitor for the Eastman Inquiry, advising that the second respondent will submit to any order of the Court save as to costs. She further certifies that the fourth respondent has filed a submitting appearance to the order of the Court save as to costs. Yes, Mr Grace.

MR GRACE: Thank you, your Honour.

GAUDRON J: Before you commence, but subject, of course, to what is said by the respondents who appear, we do not think we need to hear you on the question of guilt - as to the meaning of the word "guilt", but we are concerned whether there would be any utility in agitating any of the other issues. In that regard, we would just draw to your attention that if your contentions are wrong, then there has been a jurisdictional error and anyone, a total stranger indeed, could obtain prohibition or an order in the nature of prohibition to stop the inquiry. Is that not correct?

MR GRACE: That may well be correct, your Honour.

GAUDRON J: Well then, where is the utility in agitating those subsidiary issues?

MR GRACE: It perhaps has its foundation, your Honour, in the history of this matter when this Court, over two years ago, heard a special leave application on behalf of the applicant in relation to the matter reported in volume 103 of the Commonwealth Law Reports. It will be recalled that the Director on that occasion submitted that the proper course for Mr Eastman to adopt was to seek an inquiry under section 475 and it is somewhat ironic that that course, which has been followed by the applicant, is now the subject of challenge by the Director.

The issue of standing of the Director and whether the Director is a person aggrieved may become an issue of relevance on future occasions during the course of the inquiry in the event that the Director may seek to challenge rulings of the magistrate who was hearing the matter and the like. So, in that context the utility is made clear, I would submit.

GAUDRON J: Well, that does not go to "person aggrieved", does it?

MR GRACE: The basis upon which - - -

GAUDRON J: And is it really connected with the power to bring these proceedings?

MR GRACE: The court below declined to order that a declaration issued and instead have found relief under the AD(JR) Act of the Australian Capital Territory and in order for the Director to have standing under that Act, the Director has to be a person aggrieved. For the reasons stated in the written submissions, it is submitted that the Director could not be a person aggrieved under the provisions of that Act.

GAUDRON J: At this stage we think we should hear the respondents. Now, there is a difference between the respondents, is there not? Mr Mossop, to some extent you are in line with Mr Grace's submissions, are you not?

MR MOSSOP: That is right. The only issue so far as the third respondent is concerned which warrants a grant of special leave is the question of the meaning of "guilt". That was the only issue on which I wished to address the Court and I have heard what your Honour has said in relation to Mr Grace. There is no other matter in which I wish to be heard.

GAUDRON J: Does the fact that there seems to be a difference in approach between the Attorney-General and the Director of Public Prosecutions indicate that there really is something in this question of standing and power?

MR MOSSOP: In terms of standing and power I would respectfully adopt the submissions made by the Director on that issue.

GAUDRON J: No, but that was not my question.

MR MOSSOP: I am sorry.

GUMMOW J: You cannot slide out that way, Mr Mossop.

GAUDRON J: Given the difference in approach between the Attorney and the Director it seems at least there may really be an issue of importance to be determined as to power and person aggrieved.

MR MOSSOP: In my submission, it would not be a matter which would be appropriate for a grant of special leave for the reasons outlined by your Honour in asking questions of Mr Grace, that is, that even if that issue were resolved adversely to the Director in his statutory capacity, it would be open to another person aggrieved to raise the same issues.

GAUDRON J: I am wondering if it is not important to the overall administration of justice in the Territory when there seems to be this difference between the Attorney and the Director.

MR MOSSOP: Difference on the narrow point as to the interpretation of guilt, not a difference as to the overall - - -

GAUDRON J: It is an odd situation, is it not, for an Attorney-General and the Director of Public Prosecutions to be taking a different view in a matter such as this?

MR MOSSOP: I would concede that it is an unusual situation.

GUMMOW J: Does your client have any power under statute to direct the Director?

MR MOSSOP: Only generally, only the general matters of policy and not in relation to any particular case. So, whilst I appreciate it is an unusual situation I would simply say that for the reason of the overall lack of consequential effect, in this particular case it is not a matter which warrants the grant of special leave. May it please the Court.

GAUDRON J: Thank you. Yes, Mr Williams.

MR WILLIAMS: None of the questions raised in the application raises a special leave issue. The scope of the Director's powers to challenge inquiries into conviction is a matter that arises but rarely. There is no proper comparison to be drawn between the inter se and other important matters considered by the Court in Byrnes and Bond as to the powers of the Commonwealth Director to agitate issues under the Corporations and Companies scheme. The DPP's powers vary widely from State to State and a grant of leave on that issue will determine a matter that will arise but once.

As to "person aggrieved", the Director's interests are affected in an orthodox way by the impact on the resources and financial affairs of the office of an inquiry into the conduct of the prosecution in which a number of his officers will be called to appear, one might think, or at the very least he is the custodian of the documents and there are substantial financial and resource implications for his office. On any view of standing that would make him a person aggrieved, in our submission.

GAUDRON J: Is there any authority to that effect?

MR WILLIAMS: As to a financial interest?

GAUDRON J: Yes, that the word "aggrieved" extends as widely as that as distinct from some immediate impact upon their rights or legitimate expectations or duties or the like?

MR WILLIAMS: There is certainly authority, your Honour, although I would be pressed to name it, that an impact on the financial affairs of an individual or a corporation - - -

GAUDRON J: Yes, a direct impact, but - - -

MR WILLIAMS: But there is, in addition, a series of alternative bases on which the Director might be aggrieved. The Director was a party to the proceedings before the Chief Justice. By invitation of the Chief Justice, he appeared to agitate against the calling of an inquiry, as did the Attorney-General.

GAUDRON J: Which proceedings were these?

MR WILLIAMS: These were the proceedings in which the Chief Justice of the Territory decided whether or not to direct an inquiry.

GAUDRON J: Yes.

MR WILLIAMS: So on a North Coast Environment Council type basis, the Director is a person who has been recognised, invited into the decision-making process, and has an interest of that kind, which we take to be orthodox. There is a series of bases on which the Director is a person aggrieved, and the question of whether or not he is, in these particular circumstances, is of itself a very narrow one, which is likely to arise but rarely. The question of 475 and the meaning of "guilt" is not, in our respectful submission, a question that is of general or public importance. The section has now been repealed, both in the ACT and in New South Wales - - -

GAUDRON J: But it still uses the word "guilt" - the new section, does it?

MR WILLIAMS: The new section does, but in the words:

whether the person is guilty of the offence -

which is a different formula and narrower, we submit. But in both New South Wales and the ACT, it uses it in a context in which two of the central points of construction upon which the majority below relied are now absent. First, there is, in each case, a power to quash a conviction and order a retrial. Secondly, in each case, the inquiry can be conducted by a Supreme Court judge or a magistrate. So of the five matters on which the Full Court relied, two are now absent - so it is a question of construction that will apply to but one case.

Context is everything in statutory construction. Once the crucial questions on which the majority relied are removed, there is no basis for any wider application of the decision. As to the possibility of injustice having arisen in the present case, that does not raise a special leave question either, in our respectful submission. The appeal will not address questions about the fitness of the applicant; it will just address questions about whether or not a particular form of executive inquiry into that question can be held, which is one step removed from the injustice suggested. There are, of course, other avenues available to the executive for appointing an inquiry. In our respectful submission, the majority below were clearly right in the view they adopted of the word "guilt". In a provision that uses both "conviction" and "guilt", the latter term has its ordinary meaning: whether the person in fact committed the offence. The lack of - - -

GAUDRON J: Well, what do you mean - - -

GUMMOW J: What are the words, "in fact"?

GAUDRON J: Yes, what do you mean by that?

MR WILLIAMS: Whether or not, in the present case, the applicant murdered the deceased, as alleged.

GAUDRON J: By which you mean - - -

GUMMOW J: That includes actus reus and mens rea.

GAUDRON J: Yes.

MR WILLIAMS: Yes. We do not deny the role of a mental element in the question of whether or not the person committed the offence. We do not restrict it simply to actus reus, but we do draw the distinction between an inquiry into that matter - whether the person committed the necessary elements of the offence - and an inquiry into aspects of the trial process, such as whether, during the trial, the accused was fit to plead.

GUMMOW J: Well, that is a question. I know you draw a distinction, but it seems to be a question.

MR WILLIAMS: We say that the construction for which we contend is the preferable one, because of the lack of a mechanism for retrial or otherwise - - -

GUMMOW J: You may ultimately be right, but there does seem to be a question. That is all.

MR WILLIAMS: We concede there is a question. Whether it is a question of general or public importance is another matter. It is a question that will affect but one case, and will not go to remedy the suggested injustice in that case. We also rely, of course, on the extrinsic materials. In relation to the Director's powers, the unanimity on this side of the Bar table is, we submit, a matter that points against a question of general or public importance, rather than toward one. We submit, as we have in writing, that really, if there is to be special leave in this matter, it should be restricted to the section 475 issue, because if the appeal were resolved on the basis only of the Director's powers, without resolving the 475 issue, it would merely defer an inevitable further challenge from some person at some subsequent time.

GUMMOW J: Yes, but it is said that if this inquiry did go ahead, in the course of it, issues could arise which would engage the competency of the Director - so that, sooner or later, these questions are going to come out, if the inquiry goes ahead.

MR WILLIAMS: The question of the competency of the Director may be a slightly different question to the competency to bring the case, although we say they are really intimately connected. In any event, we put the submission that the Director has adequate power. An inquiry into fitness will involve his office as a central participant - the holder of the relevant records, the employer, at the relevant times, of witnesses - and it must surely, in our submission, be incidental to the power to conduct prosecutions to appear in such an inquiry, when the processes of his office are going to be so directly engaged. Your Honours, I am not sure whether your Honours need to hear me further on standing.

GAUDRON J: Well, it is a matter for you, Mr Williams.

MR WILLIAMS: Our submission is that on standing there is both the orthodox basis of financial affectation, plus, also, we say, the orthodox but more recent basis of involvement in the inquiry process predating the court proceedings, of the North Coast Environment Council kind, that would give the Director standing as a person aggrieved. Your Honour, those are our submissions.

GAUDRON J: Yes, thank you, Mr Williams. Mr Grace, we will not trouble you in reply.

There will be an unrestricted grant of special leave in this matter, but we do indicate that the questions other than the meaning of the word "guilt" in the relevant statutory provision are questions which either might not need to fall for decision or which might be thought, for other reasons, to be academic. The parties should thus be aware that there is a distinct possibility that there might be a revocation of leave in relation to those issues.

Now, what is going to happen in relation to the preparation of the appeal books? I think it was a matter raised in some interlocutory proceedings earlier.

MR WILLIAMS: We prepared the application book. I would need to take instructions, but I assume that we would prepare the appeal books. Yes, I am so instructed.

GAUDRON J: Yes. Are you content with that, Mr Grace?

MR GRACE: Yes, I am, and, of course, I would be happy to give some input into the contents of that appeal book and will do so as soon as possible. Could I request that this Court give consideration to expedition of the appeal hearing in this matter, given the circumstances and the delays that have occurred to date.

GAUDRON J: Rather than order expedition as such, what I shall do is direct that you file your notice of appeal within seven days, and that steps be taken to prepare the appeal books within the next 35 days - that may take us into the Christmas period - I am not sure - and direct the Registrar to give you the first date available, when the books are prepared. That is probably, in effect, the same as expedition, because where you get to in the list in this Court very much depends on how quickly you take the steps that lead to a hearing. I take it the parties can cooperate in ensuring that those steps are taken up to the lodging of appeal books within 35 days. Is that possible?

MR GRACE: Yes, I am sure it is, your Honour. If the Court pleases.

GAUDRON J: Thank you. We will adjourn again to enable the link to be restored with Brisbane.

AT 11.37 AM THE MATTER WAS CONCLUDED