Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 (22 May 2014)
CRIMINAL LAW – inquiry after conviction – decision by Supreme Court to order inquiry
under Part 20 of Crimes Act 1900 (ACT)
ADMINISTRATIVE LAW – competency of application for judicial review of decision to
order inquiry – whether judicial review is precluded by Crimes Act 1900 (ACT), s 425 –
whether a decision to order an inquiry is a reviewable decision under Administrative
Decisions (Judicial Review) Act 1989 (ACT) – whether prerogative relief is available under
Supreme Court Act 1933 (ACT), s 34B – whether Court has power to issue prerogative relief
directed to itself – whether Director of Public Prosecutions has standing to bring application
for judicial review
ADMINISTRATIVE LAW – whether decision to order inquiry was affected by
jurisdictional or other reviewable error – whether criteria in Crimes Act 1900 (ACT), s 422(1)
are jurisdictional facts – whether primary decision-maker failed to take into account
mandatory considerations – whether primary decision-maker misconstrued s 422(1) –
whether primary decision-maker took into account irrelevant considerations – whether
decision was legally unreasonable – whether order is outside that contemplated by Crimes
Act 1900 (ACT), s 424
ADMINISTRATIVE LAW – whether decision by board of inquiry to proceed with inquiry
was affected by jurisdictional or other reviewable error
STATUTORY INTERPRETATION – whether instruments appointing board of inquiry are
valid if primary decision-maker’s order for an inquiry is invalid – whether a decision to order
an inquiry affected by jurisdictional error is valid unless and until set aside
PRACTICE AND PROCEDURE – extension of time – whether time should be extended to
allow application for judicial review – Administrative Decisions (Judicial Review) Act 1989
(ACT), s 10 – Court Procedures Rules 2006 (ACT), r 3557
PRACTICE AND PROCEDURE – joinder of parties – whether joinder is necessary to
enable Court to adjudicate effectively and completely on all issues in dispute – Court
Procedures Rules 2006 (ACT), r 220 – Administrative Decisions (Judicial Review) Act 1989
(ACT), s 12
2
PRACTICE AND PROCEDURE – discretion to refuse relief – whether relief should be
granted – significant delay in bringing application for judicial review – effect of delay on
third parties – considerable work undertaken by board of inquiry – interests of justice
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 12
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 4A, 5, 10, 12, 17, Sch 1 item 11
Administrative Decisions (Judicial Review) Amendment Act 2013 (ACT) Court Procedures Rules 2006 (ACT) rr 220, 3553, 3554, 3557, 3558
Crimes Act 1900 (ACT) Part 20 (ss 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432)
Crimes Act 1900 (NSW) s 475
Crimes (Appeal and Review) Act 2001 (NSW) Part 7
Crimes (Sentence Administration) Act 2005 (ACT) ss 313, 314
Director of Public Prosecutions Act 1990 (ACT) s 6
Inquiries Act 1991 (ACT) ss 5, 7, 13, 18, 20, 21, 23, 26
Judiciary Act 1903 (Cth) s 78B
Legislation Act 2001 (ACT) ss 138, 139, 141, 142, 151C
Supreme Court Act 1933 (ACT) ss 3, 34B
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200
Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456
Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cairns Port Authority v Albietz [1995] 2 Qd R 470 Cameron v Cole (1944) 68 CLR 571
Church of Scientology Inc v Woodward (1982) 154 CLR 25 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 Director of Public Prosecutions v Eastman (2002) 130 A Crim R 58; [2002] ACTSC 35
3
Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 118 FCR 360 Eastman v Besanko (2009) 223 FLR 109; [2009] ACTSC 10
Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 Eastman v Marshall (2012) 7 ACTLR 37; [2012] ACTSC 134 Eastman v The Queen (1997) 76 FCR 9 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Fordham and State of Victoria v Evans (1987) 14 FCR 474 George v R [2007] EWCA Crim 2722 Giannarelli v Wraith (1988) 165 CLR 543 Griffith University v Tang (2005) 221 CLR 99 Harrison v Melhem (2008) 72 NSWLR 380 Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1
Jess v Scott (1986) 12 FCR 187 Johns v Australian Securities Commission (1992) 35 FCR 16
Johns v Australian Securities Commission (1992) 35 FCR 146
Johns v Australian Securities Commission (1993) 178 CLR 408 Kazzi v R [2014] NSWCCA 73 Kirk v Industrial Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531 Lansen v Minister for Environment and Heritage (2008) 174 FCR 14
Love v Attorney-General for the State of New South Wales (1990) 169 CLR 307
Ma v Minister for Immigration and Citizenship [2007] FCAFC 69
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 New South Wales v Kable (2013) 298 ALR 144; [2013] HCA 26
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 Patsalis v Attorney General for New South Wales (2013) 303 ALR 568; [2013] NSWCA 343
4
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2010] FCA 1118 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Pozniak v Minister for Health (1986) 9 ALN 256 Project Blue Sky Inc v Australian Broadcasting Authority (1948) 194 CLR 355
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132 R v Collins; Ex parte ACTU Solo Enterprises Pty Ltd (1976) 8 ALR 691 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Re Jarman; Ex Parte Cook (1997) 188 CLR 594
Re Macks; Ex parte Saint (2000) 204 CLR 158
Rondel v Worsley [1969] 1 AC 191 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384
University of New South Wales v Moorhouse (1975) 133 CLR 1 Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 Wainohu v New South Wales (2011) 243 CLR 181
Wang v Farkas [2014] NSWCA 29
Wedesweiller v Cole (1983) 47 ALR 528 No. SC 436 of 2013 Judges: Murrell CJ, Katzmann & Wigney JJ Supreme Court of the ACT Date: 22 May 2014
IN THE SUPREME COURT OF THE ) ) No. SC 436 of 2013 AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: Director of Public Prosecutions for the Australian Capital Territory
Plaintiff
AND: The Honourable Acting Justice Brian
Martin First Defendant AND: The Supreme Court of the Australian
Capital Territory Second Defendant AND: David Harold Eastman Third Defendant AND: Australian Capital Territory Fourth Defendant O R D E R
Judges: Murrell CJ, Katzmann & Wigney JJ
Date: 22 May 2014
Place: Canberra
THE COURT ORDERS THAT: 1. To the extent that he requires it, the plaintiff be granted an extension of time to bring
these proceedings.
2. Robert Collins Barnes be added as a plaintiff.
3. The originating application be dismissed.
4. Costs be reserved.
2
5. The parties notify the Court within seven (7) days as to whether they wish to be heard
on the question of costs or are content for the Court to make orders to the effect of
those foreshadowed in the reasons for judgment.
Table of contents Background ................................................................................................................................ 1 The application for judicial review ............................................................................................ 2 The relevant statutory provisions ............................................................................................... 4 The alleged errors ...................................................................................................................... 8 Issues ........................................................................................................................................ 11 The previous applications for an inquiry ................................................................................. 13
The 2000 application ............................................................................................................ 13
The 2001 application ............................................................................................................ 13
The 2005 application ............................................................................................................ 15
The current application......................................................................................................... 16
The decisions of the primary decision-maker .......................................................................... 20 10 August 2012 .................................................................................................................... 20
3 September 2012 ................................................................................................................. 23
The inquiry ............................................................................................................................... 25 Is the application competent?................................................................................................... 29
Is judicial review precluded by s 425 of the Crimes Act? ................................................... 29
Is the application under the ADJR Act incompetent? .......................................................... 39
Does the Director have standing to bring the application? ...................................................... 42 Is relief under s 34B of the Supreme Court Act available? .................................................. 45
Should time be extended to permit the Director to seek prerogative relief in relation to the primary decision-maker’s order? ............................................................................................. 48 The application by Mr Barnes.................................................................................................. 64
Joinder under r 220 ............................................................................................................... 66
Joinder for the purpose of the ADJR Act application .......................................................... 69
Joinder of the ACT................................................................................................................... 72 What is the nature of the s 422(1) gateway? ............................................................................ 73 Did the primary decision-maker fall into jurisdictional or other reviewable error by ordering the inquiry without determining whether any or all of the preconditions in s 422(1) of the Crimes Act were made out? ..................................................................................................... 76 Did the primary decision-maker fall into jurisdictional error in other respects? ..................... 83
Did his Honour fail to take into account mandatory considerations or misconstrue s 422(1)? .............................................................................................................................................. 83
Did his Honour take into account the Director’s attitude to the application and, if so, was that a reviewable error? ........................................................................................................ 86
Did his Honour fail to take into account that the amended application on its face raised matters which were incapable of falling within the terms of s 422(1)? ............................... 87
2
Was the decision manifestly unreasonable? ......................................................................... 90
Is the order for the inquiry outside that contemplated in s 424 of the Crimes Act? ................ 90 Conclusion ............................................................................................................................... 92 The validity of the instruments of appointment ....................................................................... 93 Did Martin AJ fall into jurisdictional error by deciding to proceed with the inquiry without regard to the limitations of s 422 of the Crimes Act or on the basis that s 422 defines the scope of the inquiry? .............................................................................................................. 101 What orders, if any, should be made? .................................................................................... 104 Costs ....................................................................................................................................... 108
THE COURT
Background 1. On 3 November 1995, after a lengthy trial, David Harold Eastman was convicted of
the murder of Colin Stanley Winchester, then an Assistant Commissioner of the
Australian Federal Police. The following week he was sentenced to life
imprisonment. After exhausting his appeal rights, Mr Eastman secured an inquiry
into his conviction, though on much more limited terms than he had sought. That
inquiry was conducted by Miles CJ. It was an inquiry into Mr Eastman’s fitness to
plead. Miles CJ found that Mr Eastman was not unfit to plead throughout or at any
time during the trial and that there was no miscarriage of justice resulting from any
unresolved question on that subject. Consequently, his Honour did not recommend
that the Executive take any action to set aside Mr Eastman’s conviction. Since then,
Mr Eastman has fought tirelessly for a new inquiry. His next application was heard
and determined by Besanko J. It was unsuccessful. His most recent (“the current
application”) is the subject of the present proceeding.
2. On 6 March 2012 the primary decision-maker (Marshall J) ruled that he had no power
to consider the current application because the Crimes Act 1900 (ACT) (“Crimes
Act”) only allowed for one inquiry. That decision was set aside by a Full Court on
30 July 2012 and his Honour was directed to consider the application.
3. On 10 August 2012, at the conclusion of what had been scheduled as a directions
hearing, the primary decision-maker ordered that there be an inquiry into
Mr Eastman’s conviction. On 3 September 2012 the Director of Public Prosecutions
(“Director”) tried in vain to persuade his Honour to reconsider his decision. His
Honour did, however, revise his previous order (invoking the slip rule), so as to
“limit” the inquiry to the matters set out in Mr Eastman’s amended application. He
2
did so simply by incorporating into the orders the entire contents of the amended
application. Consequently, the Executive appointed a board of inquiry (originally
constituted by Duggan AJ and, after his Honour recused himself, Martin AJ) and the
inquiry began. Then, having failed to persuade both the primary decision-maker and
Duggan AJ to do so, the Director asked Martin AJ to confine the limits of the inquiry,
again without success.
4. This proceeding started on 15 November 2013 when the Director filed an application
for judicial review of the decisions of the primary decision-maker and Martin AJ.
The application challenging the orders made by the primary decision-maker is well
out of time, so the Director requires the leave of the Court to bring it.
The application for judicial review 5. The application seeks both prerogative and statutory relief. It is brought under s 34B
of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”) and s 5 of the
Administrative Decisions (Judicial Review) Act 1989 (ACT) (“ADJR Act”). The
Director accepts that, as the decision of Martin AJ was made under the Inquiries Act
1991 (ACT) (“Inquiries Act”), it is not reviewable under the ADJR Act: see ADJR
Act, Sch 1 item 11.
6. As well as an order to extend the time for bringing the application, the relief sought
includes orders in the nature of certiorari to quash the orders made by the primary
decision-maker on both 10 August and 3 September 2012, and the instrument
appointing Martin AJ to conduct the inquiry, and prohibition to restrain Martin AJ
from continuing to do so pursuant to the primary decision-maker’s “purported order”
of 3 September 2012. Before going any further, however, we would note that, if we
were to accede to the Director’s application, it would be unnecessary to quash both
orders. That is because the effect of the slip rule is to correct the earlier order and
3
“[t]he earlier order as corrected [speaks] by operation of the later order from the
earlier date”: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61
FCR 385 at 392. Here, that would mean that it is the order made on 10 August 2012
(as corrected by the order of 3 September 2012) which would have to be quashed.
7. For the purpose of challenging the instrument of appointment, the Director made a
late but successful application to join the Australian Capital Territory (“the ACT”) as
a defendant.
8. The application was opposed by Mr Eastman, the Attorney-General for the ACT, who
intervened, and the ACT, itself.
9. The application was supported by two affidavits sworn by Melissa Kent, a lawyer
employed in the office of the Director. The first, sworn on 15 November 2013,
contains a summary of the criminal proceedings and the course of the various
applications for an inquiry. It also provides a brief explanation for the delay in
bringing the application. Exhibited to that affidavit is a large lever-arch folder
containing the primary material referred to in the summary. The purpose of the
second affidavit, sworn on 27 November 2013, was to put additional documents
before the Court.
10. The hearing of the application began on 9 December 2013, following an order for
expedition. During the course of the hearing a question was raised which required
notice to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). The
Court exercised its power under s 78B(2)(c) to sever the constitutional question and to
continue to hear evidence and argument about the other matters raised by the
application. On 20 February 2014, after the requisite notices had been given, the
hearing resumed.
11. During the adjournment two significant events took place.
4
12. First, the Director filed additional evidence. That evidence consisted of an affidavit
affirmed by the Director himself, Mr Jonathan White, which provided a more fulsome
account of the reasons for the delay.
13. Second, Robert Collins Barnes, whose conduct is the subject of several of the
inquiry’s terms of reference, applied both for leave to intervene and to be added as a
party in order to support the Director’s application.
The relevant statutory provisions 14. Inquiries into convictions are governed by Part 20 of the Crimes Act. Part 20
commenced after Mr Eastman’s conviction, but s 432 gives it retrospective operation.
Division 20.2 creates a power, but not a duty, to order an inquiry (s 425(1)). The
inquiry may be ordered by the Supreme Court on the application of a convicted
person or someone on his or her behalf (s 424) or by the Executive on its own
initiative (s 423). Proceedings in the Supreme Court on an application are not judicial
proceedings (s 424(4)).
15. Section 422 is the provision with which this application is primarily concerned. It is
in the following terms:
Grounds for ordering inquiry
(1) An inquiry may be ordered under this part into the conviction of a person for an offence only if—
(a) there is a doubt or question about whether the person is guilty of the offence; and
(b) the doubt or question relates to—
(i) any evidence admitted in a relevant proceeding; or
(ii) any material fact that was not admitted in evidence in a relevant proceeding; and
(c) the doubt or question could not have been properly addressed in a relevant proceeding; and
(d) there is a significant risk that the conviction is unsafe because of the doubt or question;
(e) the doubt or question cannot now be properly addressed in an appeal against the conviction; and
5
(f) if an application is made to the Supreme Court for an inquiry in relation to the conviction—an application has not previously been made to the court for an inquiry in relation to the doubt or question; and
(g) it is in the interests of justice for the doubt or question to be considered at an inquiry.
…
(2) The inquiry is limited to matters stated in the order for the inquiry.
(3) If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.
16. A “relevant proceeding” “in relation to an offence” is defined in s 421 for the
purposes of Part 20 to mean:
A prosecution or other proceeding in relation to the offence, including an appeal in relation to the finding of a court in relation to the offence.
17. Section 425 is also material. It provides:
Rights and duties in relation to orders for inquiry
(1) This division does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.
(2) Without limiting subsection (1), there is no right of appeal in relation to a decision whether to order an inquiry.
18. In the event that an inquiry is ordered, the procedure to be followed is prescribed by
Division 20.3 of the Crimes Act. Section 426 provides that the Inquiries Act applies,
subject to the Division. The Executive is obliged to appoint a board of inquiry under
the Inquiries Act (s 427(1)). The inquiry must be stated in the appointment to be in
relation to the matter stated in the order and in relation to no other matter (s 427(2)).
The board must be constituted by a Supreme Court judge or a magistrate (s 427(3))
who has had no involvement at all in a relevant proceeding in relation to the offence
(as defined in s 421) or in any investigation in relation to the acts or omissions alleged
to constitute the offence (s 427(4)).
6
19. Under the Inquiries Act, the board determines the manner in which an inquiry is to be
conducted (s 13). The board may conduct hearings (s 21) and may decide the
procedure at any hearing (except as otherwise provided in that Act) (s 23).
20. Section 18 of the Inquiries Act provides that the conduct of the inquiry must comply
with the rules of natural justice but that the board is not bound by the rules of
evidence. It may inform itself as it considers appropriate and may do whatever is
necessary or convenient for the fair and prompt conduct of the inquiry.
21. After finishing an inquiry, the board must give a copy of its report to the registrar of
the Supreme Court: Crimes Act, s 428(1). The registrar must give a copy of the report
to the Attorney-General and the convicted person, together with a copy of any non-
disclosure order made by the Supreme Court under s 429(2) of the Crimes Act:
Crimes Act, s 429(1).
22. A Full Court of the Supreme Court must then consider the report (Crimes Act,
s 430(1)) and, without receiving submissions from anyone, and having regard only to
the report and any documents or things given to the registrar with the report (s 431),
make one of the following orders:
(a) confirm the conviction; or
(b) confirm the conviction and recommend that the Executive act in relation to the
convicted person under either of the following sections of the Crimes (Sentence
Administration) Act 2005 (ACT): s 313 (remission of penalties) or s 314 (grant
of pardons); or
(c) quash the conviction; or
(d) quash the conviction and order a new trial.
See Crimes Act, s 430(2).
7
23. Section 430(4) stipulates that subs (2) does not give the convicted person a right to
one of the orders mentioned in paragraphs (b), (c) or (d) or to an Executive pardon or
remission.
24. Rule 3553(1) of the Court Procedures Rules 2006 (ACT) (“Court Procedures Rules”)
provides that the Supreme Court is no longer to issue the prerogative writs of
mandamus, prohibition and certiorari. Rule 3554(1) states that the Court continues to
have jurisdiction to grant relief by way of these writs, however, if it had that
jurisdiction before the commencement of the Rules.
25. Section 34B of the Supreme Court Act 1933 (ACT) (which commenced on
17 December 1993) relevantly provides that this Court has the power to grant relief by
way of a prerogative order. “Prerogative order” is defined to mean:
an order the relief under which is in the nature of, and to the same effect as, relief by way of —
(a) a writ of mandamus, prohibition or certiorari;
…
26. The Court also has the power to grant orders to the same effect under the ADJR Act
(s 17(1)).
27. Declaratory relief is available under r 3558 of the Court Procedures Rules and, on the
assumption that the ADJR Act applies, also under s 17(1) of that Act.
28. Section 5(1) of the ADJR Act provides that an “eligible person” may apply under the
Act for an order of review in relation to a decision to which the Act applies on one or
more of the following grounds:
(a) that a breach of the rules of natural justice happened in relation to the making of the decision;
(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
8
(d) that the decision was not authorised by the enactment under which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.
29. Section 5(2) provides that the reference in subsection (1)(e) to “an improper exercise
of a power” includes a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power; and
(b) failing to take a relevant consideration into account in the exercise of a power; and
…
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; and
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain;
…
The alleged errors 30. The Director alleges that the primary decision-maker made the following errors, each
of which is said to be a jurisdictional error and also an error of a kind mentioned in s 5
of the ADJR Act:
(1) failing to ask the correct question by making the decision to order the inquiry
without determining whether any or all of the preconditions in s 422(1) of the
Crimes Act were satisfied.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(c), (f) and (i);
9
(2) making an error of law in his interpretation of s 422(1) by misconstruing the
preconditions in the subsection.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(f);
(3) failing to take into account mandatory relevant considerations, namely:
a. the matters specified in s 422(1)(a), (b), (c), (d) and (f);
b. the grounds specified in the amended application for an inquiry;
c. the scope of the previous application for an order under s 422 made by
Mr Eastman, which was determined by Besanko J; and
d. the matters previously considered by Miles CJ in his Honour’s inquiry into
the conviction.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(e) and (2)(b);
(4) taking into account an irrelevant consideration, namely, the statement made on
behalf of the Director on 20 August 2012 that he did not oppose the making of
an order.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(e) and (2)(a);
(5) failing to take into account that, on its face, the amended application raised
matters that were not, and were not capable of being construed as:
(a) doubts or questions about Mr Eastman’s guilt within the meaning of s
422(1)(a);
10
(b) doubts or questions that related to any evidence admitted in a relevant
proceeding or any material fact that was not admitted in evidence in a
relevant proceeding, within the meaning of s 422(1)(b);
(c) doubts or questions that could not have been properly addressed in a
relevant proceeding, within the meaning of s 422(1)(c); and
(d) doubts or questions that satisfied the requirements of s 422(1) and which
might be the subject of an inquiry pursuant to s 422(2);
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(e) and (2)(a);
(6) making a decision that was so perverse, irrational and unreasonable that no
reasonable decision-maker could have made it in the circumstances.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(e) and (2)(g);
(7) making the decision although the preconditions in s 422(1) were not satisfied.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(c); and
(8) making an order of a kind that was not contemplated by ss 422 and 424 of the
Crimes Act, as the order did not state the matters in respect of which the inquiry
was to be conducted.
For the purposes of the ADJR Act application, this is said to be an error of the kind
described in s 5(1)(c), (d), (e), (f) and (2)(h).
31. Further, the Director alleges that Martin AJ fell into jurisdictional error or error of law
on the face of the record, by proceeding with the inquiry in circumstances where the
primary decision-maker’s order for the inquiry did not identify doubts or questions
11
within the limits of s 422 of the Crimes Act and where Martin AJ found that the
primary decision-maker had made the order for the inquiry without regard to at least
one of the jurisdictional preconditions in s 422, namely s 422(1)(f).
32. The Director then alleges that Martin AJ erred in failing to conduct the inquiry on the
basis that the scope of the matters to be inquired into was defined by s 422 of the
Crimes Act or that the terms of the order for the inquiry were to be construed as
subject to a general qualification that the inquiry was to be conducted into the matters
specified only to the extent that they came within s 422.
33. Finally, the Director claims that, as the order for an inquiry is invalid, the instrument
of appointments appointing Duggan AJ and Martin AJ are also invalid. For the
purposes of the ADJR Act application, this is said to be an error of the kind described
in s 5(1)(d) and (i).
Issues 34. The parties agreed that the application raises the following issues:
(1) Is the application competent?
(2) Does the Director have standing?
(3) Does s 425(2) of the Crimes Act preclude the Court from reviewing the
decisions or purported decisions to order an inquiry?
(4) Should leave be granted to extend the time for bringing the application?
(5) What is the nature of the section 422(1) gateway?
(6) Did the primary decision-maker fall into reviewable error by ordering the
inquiry without determining whether any or all of the preconditions in s 422(1)
of the Crimes Act were made out (ground 1 in the amended application)?
(7) Alternatively, did the primary decision-maker fall into reviewable error by:
(i) misconstruing s 422(1);
12
(ii) failing to take into account the mandatory considerations in s 422(1)(a),
(d) and (f), the grounds specified in the amended application for an
inquiry, the scope of the previous application determined by Besanko J
and the matters considered by Miles CJ;
(iii) taking into account and giving considerable weight to an irrelevant
consideration, being the Director’s decision that it would not oppose an
order for an inquiry;
(iv) failing to take into account that the amended application on its face raised
matters that are incapable of falling within the terms of s 422(1);
(v) making a decision that was “perverse, irrational and so unreasonable that
no reasonable decision-maker could have reached [it]” (ground 2)?
(8) Alternatively, did the primary decision-maker lack jurisdiction to make the
decision because the preconditions contained in s 422(1) were not made out
(ground 3)?
(9) Is the order outside that contemplated in s 424 of the Crimes Act because it does
not state the matters in respect of which the inquiry is to be conducted
(ground 4)?
(10) What is the effect of any reviewable error by the primary decision-maker on the
appointment by the Executive of Martin AJ as the board of inquiry and the
conduct of the inquiry?
(11) Did Martin AJ fall into reviewable error by deciding to proceed with the inquiry
on 5 and 6 November 2013 without regard to the limitations of s 422 or by
failing to conduct the inquiry on the basis that s 422 defines its scope and
construing the terms of reference as being subject to s 422 (grounds 5 and 6)?
(12) If the application is successful, what orders, if any, should be made?
13
35. The application by Mr Barnes raises the additional issue of whether he should be
joined.
The previous applications for an inquiry 36. Before dealing with the issues and the decisions in question, it is necessary to provide
some context.
The 2000 application 37. On 9 June 2000 Mr Eastman applied to Miles CJ pursuant to s 475 of the Crimes Act
(since repealed) for an inquiry into his conviction (“the 2000 application”). Section
475 relevantly provided that whenever, after the conviction of a prisoner, “any doubt
or question arises as to his or her guilt, or any mitigating circumstance in the case, or
any portion of the evidence therein”, the Executive on the petition of the prisoner, or
someone on the prisoner’s behalf, or a judge of the Supreme Court of his or her own
motion could direct a magistrate to summon and examine on oath all persons likely to
give material information on that matter.
38. The 2000 application was not accompanied by any supporting evidence and in July
2000 it was rejected.
The 2001 application 39. On 31 May 2001 Mr Eastman made a second application under s 475 of the Crimes
Act (“the 2001 application”). This application alleged that:
(a) Mr Eastman was unfit to plead during part of his trial;
(b) The murder was committed by persons associated with organised crime;
(c) The ballistics evidence given at the trial by Robert Barnes was unsafe;
(d) Utterances that Mr Eastman made, which were recorded on a listening device
and tendered at trial, had been made involuntarily and as a result of a campaign
of harassment conducted by the Australian Federal Police (“AFP”).
14
40. Miles CJ declined to direct an inquiry into the second, third and fourth matters raised
in the application. Over opposition from the Director and the Attorney-General, who
argued that it did not raise a doubt or question as to his guilt, his Honour ordered an
inquiry into Mr Eastman’s fitness to plead “during the whole or any part of his trial”.
41. Both Mr Eastman and the Director sought judicial review of the Chief Justice’s
decision. Mr Eastman’s application was dismissed. The Director’s attempt was also
foiled at first instance: see Director of Public Prosecutions v Eastman (2002) 130 A
Crim R 58; [2002] ACTSC 35 (Gray J). But on appeal the Director prevailed, a
majority of the Court (Madgwick J dissenting) holding that a doubt or question
restricted to the fitness of an accused to plead was not a doubt or question as to a
prisoner’s guilt within the meaning of s 475: Director of Public Prosecutions of the
Australian Capital Territory v Eastman (2002) 118 FCR 360 (“DPP v Eastman”).
The decision of the primary decision-maker was restored, however, after the High
Court allowed Mr Eastman’s appeal: Eastman v Director of Public Prosecutions of
the Australian Capital Territory (2003) 214 CLR 318. The High Court held that a
doubt or question about an accused person’s fitness to plead gives rise to a doubt or
question as to a portion of the evidence in the case. McHugh J (Gummow J agreeing)
considered that a doubt or question concerning the guilt of a prisoner must inevitably
arise if the prisoner was unfit to plead to the charge which resulted in conviction.
42. Miles CJ then carried out the inquiry. He published his report on 6 October 2005.
His Honour concluded (at [277] of his report) that it had not been shown that
Mr Eastman was unfit to plead during any part of the trial and made no
recommendation that the Executive take any action to set aside the conviction.
15
The 2005 application 43. Section 475 of the Crimes Act was repealed with effect from 27 September 2001 and
replaced by Part 17 (later renumbered Part 20). According to the second reading
speech on the bill which introduced Part 17 (the Crimes Legislation Amendment Bill
2001 (ACT)), the new provisions were designed to overcome “gaps and uncertainties”
in the operation of s 475, in particular by identifying available outcomes. As we have
already said, under the new provisions an inquiry can only be ordered if there is a
doubt or question about whether the person is “guilty of the offence” and six
additional requirements (set out in what is now s 422) have been met.
44. On 2 February 2005 Mr Eastman applied to the Supreme Court for an inquiry under
the new Part 20 (“the 2005 application”). The four grounds upon which he relied may
be summarised as follows:
(1) There was a reasonable hypothesis that the murder was committed by
individuals connected with organised crime;
(2) There were doubts about the reliability of the evidence Mr Barnes gave about
gunshot residue;
(3) There were doubts about the reliability of the identification evidence given by
Raymond Webb; and
(4) There were doubts about the voluntariness of statements recorded on the
listening device because they had been coerced by a campaign of AFP
harassment.
45. On 4 April 2008 Besanko J published a 66-page decision, concluding that an inquiry
should not be ordered because the preconditions in s 422 were not satisfied.
46. Mr Eastman applied for judicial review of this decision under the ADJR Act, but his
application was dismissed: Eastman v Besanko (2009) 223 FLR 109; [2009]
16
ACTSC 10. Mr Eastman appealed but his appeal was also dismissed: Eastman v
Besanko (2010) 244 FLR 262; [2010] ACTCA 15. The Court of Appeal held that
s 425(1) of the Crimes Act immunised the decision not only from appeal but also
from judicial review. Penfold J, with whom Graham J agreed on this point, also held
that a decision not to order an inquiry was not a decision made under an enactment
because it did not confer, alter or otherwise affect legal rights or obligations.
The current application 47. About eight months later, on 29 April 2011, Mr Eastman made a further application
under s 424 of the Crimes Act for an inquiry into his conviction. The basis for this
application was that there was a doubt or question about whether the prosecution had
neglected its duty to disclose information casting doubt on the veracity and reliability
of Mr Barnes, the Crown’s ballistics expert.
48. On 6 June 2011 Mr Eastman supplemented his application and there followed an
exchange of submissions. In his submissions the Director argued that none of the
requirements of s 422(1) had been made out.
49. On 15 December 2011 an amended application was filed on Mr Eastman’s behalf. In
this application, which also incorporated some submissions, 12 grounds were sought
to be added. They begin with “(h)” because the earlier application, though including
only one ground, contained seven paragraphs numbered (a)–(g). Those grounds were:
(h) The trial should have been adjourned no later than 29 June 1995 when material
sufficient to raise the question of Mr Eastman’s fitness to stand trial was made
on the initiative of the trial judge. At that time the trial was required by law to
be adjourned to the ACT Mental Health Tribunal and the trial which continued
without the adjournment was a nullity.
17
(i) The question of Mr Eastman’s fitness to stand trial was not properly and fully
before the High Court and the High Court was “not assisted with the transcript
of 29 June 1995”, in particular, pp 2132–3, which were omitted from the nine
volumes of appeal books filed by the Director.
(j) When the question of Mr Eastman’s fitness to plead was raised in the 2001
inquiry before Miles CJ, his Honour was “not assisted by any reference to the
proceedings and legal argument” in the trial that took place on 29 June 1995.
(k) The evidence of Robert Barnes concerning the alleged use by Mr Eastman of a
firearm with a silencer attached is “in direct conflict” with the evidence of a
witness (Cecil Robin Grieve) who heard the sound of two gunshots at the time
of the murder. The witness gave evidence at the inquest into Mr Winchester’s
death which culminated in Mr Eastman’s committal for trial but was not called
to give evidence at the trial.
(l) The Director falsely asserted in submissions to Besanko J that no witness heard
the fatal shots.
(m) The gunshot residue evidence central to the prosecution case at the trial is now
explained by new evidence inconsistent with Mr Eastman’s guilt. That evidence
is to the effect that a friend of Mr Eastman had carried a .22 Brno rifle in the
boot of Mr Eastman’s car and the ammunition fired through that rifle included
.22 PMC and .22 CCI ammunition. The relevance of this evidence is said to be
apparent from the judgment of the Federal Court in Eastman v The Queen
(1997) 76 FCR 9 (“Eastman v The Queen”) at 29–31.
(n) There is “a clear hypothesis contained in the evidence given to the coronial
inquest and available contemporaneous police intelligence consistent with the
guilt of others” with whom Mr Eastman has no connection. This material
18
includes “the previously considered material in MFI 23 and MFI 130, which
must be analysed in the context of other evidence led at the coronial inquest”.
(o) Evidence which is not factually correct and other evidence which was
substantially misleading was led by the prosecution and subsequently went
unchallenged, was accepted by the Federal Court as a strong circumstantial case
of murder. The evidence was often presented when Mr Eastman was not legally
represented.
(p) Evidence was not led at Mr Eastman’s trial of the circumstances of the first
corroborated meeting between Mr Eastman and the witness, Raymond Webb.
The statements of those persons who were with Webb at the time support the
argument that Webb’s evidence was “recent invention”.
(q) The transcription of the taped initial conversation between the witness Dr Denis
Roantree on 13 January 1989 (MFI 6 at the inquest) was suppressed by the
coroner on the application of the AFP. That initial conversation is inconsistent
with evidence given by Dr Roantree at Mr Eastman’s trial at a time when he was
not legally represented.
(r) Part of the conversation between Dr Roantree and Mr Eastman was made in the
presence of the doctor’s teenage daughter from whom no statement was
obtained or produced in evidence.
(s) An allegedly contemporaneous note of the conversation between Dr Roantree
and Mr Eastman was made approximately ten days after the conversation and
was inconsistent with the initial account Dr Roantree gave the police.
(t) Evidence of surveillance tapes of Mr Eastman talking to himself in his home at
night was “opened by the prosecution” and led as a voluntary and reliable
confession when the prosecution was at all relevant times in possession of a
19
psychiatric reports from Dr Rod Milton, commissioned by the AFP, containing
opinions that Mr Eastman should be regarded as psychotic and was possibly on
medication for a severe mental disorder.
(u) “A review of controversial and now disputed evidence called at [Mr Eastman’s]
trial and relevant evidence which was not called at the trial has never been made
in the context of [Mr Eastman’s] mental state during his trial, has fitness to
stand trial and his fragmented legal representation and it is in the interests of
justice that these matters are reviewed”.
(v) “As a consequence of:
(i) the conduct of the prosecution;
(ii) misconduct by investigating police;
(iii) the inadequacy of [Mr Eastman’s] defence;
(iv) the failure of the trial judge to grant appropriate adjournment and oversee
the interests of [Mr Eastman] when he was not legally represented; and
(v) [Mr Eastman’s] mental illness,
[Mr Eastman] did not receive a satisfactory trial and the conviction is unsafe”.
50. At a directions hearing on 13 February 2012 Mr Eastman sought leave to add a further
ground (w):
Recent scientific protocols and forensic guidelines call into question evidence of low levels of firearms discharge given at [Mr Eastman]’s trial and the significance which may attach to that evidence.
51. At the same directions hearing the primary decision-maker raised a concern about
whether it was open to Mr Eastman to make the current application. He invited
submissions on whether s 422(1)(f) of the Crimes Act (“an application has not
previously been made to the court for an inquiry in relation to the doubt or question”)
20
precluded the application and said he would deal with the matter as a preliminary
issue.
The decisions of the primary decision-maker 52. On 6 March 2012 the primary decision-maker held that the Court had no power to
order more than one inquiry into a conviction and, as there had already been an
inquiry into Mr Eastman’s conviction, he had no power to consider Mr Eastman’s
current application. On 30 July 2012 a Full Court of this Court made orders, amongst
other things, requiring his Honour to consider the application, holding that his Honour
had misconstrued s 422: Eastman v Marshall (2012) 7 ACTLR 37; [2012] ACTSC
134 (“Eastman v Marshall”).
53. On 6 August 2012 his Honour conducted a directions hearing for the express purpose
of “programming” the hearing of Mr Eastman’s application. That hearing was fixed
for 3 September 2012. His Honour also directed Mr Eastman to file a further
amended application by 13 August 2012.
10 August 2012 54. On 10 August 2012 his Honour conducted another directions hearing. At this hearing
the Director was represented by his Deputy, John Lundy, and Terrence O’Donnell
appeared for Mr Eastman.
55. Mr O’Donnell filed in court what he described as “a consolidated document” (but
which was entitled “amended application”) purportedly containing the grounds of
Mr Eastman’s application. The amended application contained 19 grounds and a one
page annexure entitled “Key to consolidated and additional grounds”. A copy of the
amended application is annexed to these reasons. As will be seen, it consists of a
series of propositions. Though apparently prepared and signed by a lawyer, it would
be more accurate to characterise it as a set of submissions in support of an application.
21
56. Mr O’Donnell informed the Court that the document included “four fresh grounds”,
which, he said (somewhat unhelpfully), “relate basically to ballistics evidence in the
Barry George case”. This appears to have been a reference to George v R [2007]
EWCA Crim 2722 in which the Court of Appeal of England and Wales quashed a
murder conviction after fresh evidence was admitted casting doubt on the reliability of
the ballistics evidence led at Mr George’s trial.
57. The transcript does not disclose whether his Honour read the so-called consolidated
document or just the additional grounds. Certainly, it does not indicate that his
Honour asked for time to do so. The entire hearing was over in 17 minutes including
the pronouncement of orders and the publication of reasons.
58. After some brief discussion about the hearing date, his Honour asked Mr Lundy about
“his position”. Mr Lundy explained that he had only received the application that
morning. But when asked whether he opposed “an application for an inquiry”, he said
he did not. The following exchange then took place:
HIS HONOUR: If there’s no opposition to an application for inquiry, why shouldn’t I order an inquiry if it’s not opposed?
Mr LUNDY: There’s no reason from my point of view, your Honour.
…
Mr LUNDY: I’m sorry, your Honour, could I just take a backward step. Before you finalise that order, the grounds for ordering under section 422 must be – you must be satisfied in relation to those and I just wonder if your Honour has considered the – those particular grounds in 422. I just – I don’t want us to mooch off before your Honour is satisfied of those.
HIS HONOUR: Well, I understand you don’t oppose.
Mr LUNDY: No, I don’t but it’s a matter…
HIS HONOUR: No. But I still have to be satisfied. Well, I read the previous material before dealing with the jurisdictional question.
...
Mr LUNDY: No. I just wanted it on record that your Honour is satisfied of the grounds under section 422.
HIS HONOUR: But I’m doing this under the authority of the Full Court of the ACT Supreme Court.
22
MR LUNDY: Yes.
HIS HONOUR: Whether that’s right or wrong is not a matter for me; I must assume it to be right.
59. His Honour proceeded to order that there be an inquiry “into the conviction of the
applicant for murder on 10 January 1989”. He then reformulated the order in the
following way:
Upon the Court forming the view that:
(a) There is a doubt or question about whether the applicant is guilty of the offence of murder for which he was convicted on 10 November 1995;
(b) The doubt relates to evidence admitted in that proceeding;
(c) The doubt could not have been properly addressed in that proceeding;
(d) There is a significant risk that the conviction is unsafe because of the doubt or question;
(e) The doubt cannot now be properly addressed in an appeal against the conviction; and
(f) It is in the interest of justice that the doubt be considered at an inquiry.
The Court orders that:
1. There be an inquiry into the conviction of the applicant for murder …
2. That such inquiry be conducted by a Judge of this Court or by a Magistrate in accordance with the provisions of Division 20.3 of the Crimes Act 1900 (ACT).
60. Paragraphs (a)–(f) above were said to relate to paragraphs (a)–(g) of s 422(1) of the
Crimes Act. His Honour stated that he was “skipping” paragraph (f).
61. Shortly thereafter, his Honour adjourned the court. Later, one or other of the parties
asked for clarification of the orders. Apparently, his Honour asked for submissions
on the form of the orders and the Director filed a 16-page submission. The
submission pointed out that the orders did not state the matters for the inquiry
(although it will be recalled that s 422(4) requires that the inquiry be limited to the
matters stated in the order for the inquiry), submitted that there could be “no inquiry
at large” under Part 20 of the Crimes Act, and went on to address the grounds of the
23
amended application. Noting that he had only been served with the amended
application in court on 10 August, the Director submitted:
On consideration, it can be seen that the grounds (which are described as “consolidated and additional”) are framed in an extravagant and argumentative fashion, are not properly supported by any material on which your Honour could rely to attain the requisite satisfaction of matters as complying with section 422, and not least pay no heed at all to the tight restrictions imposed by section 422.
62. No application was made for the orders to be revoked. No submission was put (in
terms at least) that the orders were infected by jurisdictional error, with the result that
there was not only no impediment to reconsidering the matter but there was a duty to
do so or, more accurately, to complete the statutory task (see Minister for Immigration
and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”)). Rather,
the Director proceeded to address each of the grounds of the amended application in
order to show that none of the grounds satisfied the requirements of the section.
63. The matter returned to court on 3 September 2012.
3 September 2012 64. On this occasion the Director appeared in person. Mr Eastman was represented by
Robert Richter QC. His Honour said that he was concerned to ensure that his order
reflected the intention he had on 10 August that an inquiry be established on the basis
of Mr Eastman’s application. Mr Richter urged his Honour to proceed with his stated
intention and criticised the Director’s submission as “an appeal in the guise of a
submission”. He characterised the Director’s position as “outrageous” and invited his
Honour not to accept the written submissions. He contended that “the only thing that
[was] missing [was] the formality of the annexure of the grounds” and that was a
“slip”.
24
65. The Director submitted that the orders made on the previous occasion were “contrary
to law”. The following exchange ensued:
HIS HONOUR: Well, you then appeal it.
MR WHITE: Well---
HIS HONOUR; And then you might ask for a Full Court of five and they might overturn the silly decision that overturned me.
MR WHITE: Well, there is no appeal as such, from these proceedings … With all respect, let us all consider the extent to which part 20 binds all of with, with respect, including your Honour, and part 20 specifies the grounds upon which an order may be made …
[T]he DPP is making a submission as to what your powers, with respect, are under part 20 and they are clearly circumscribed.
66. At this point, his Honour interrupted the Director to say:
Well, it would have been a lot more convenient for that to be made on 10 August.
67. The Director responded by repeating that the Director was only given the amended
grounds in court on 10 August. He offered no explanation for the position adopted by
his Deputy on that day and emphasised again that his Honour was bound by Part 20.
He submitted that his Honour could not make the order urged upon him. Without
hearing further from Mr Richter, his Honour then proceeded to deliver judgment. It is
convenient to set out his reasons in their entirety.
On 10 August 2012 when the court last dealt with this matter it had intended to program a hearing of an application for an inquiry, however, counsel for the DPP, Mr Lundy, informed the court the DPP did not oppose the application. I took that to mean non-opposition to the application before the court as amended. I also took that to be a concession given by counsel operating at arm’s length that I should order an inquiry based on grounds contained in the amended application. It was my intention that the extent of the inquiry be reflected in the grounds in the application. That course was not opposed by the DPP on 10 August.
Later the court was asked to reconvene to clarify its orders. The court has convened for that purpose today. Last week it asked for submissions about the form of any order that the court should make to reflect its intention on 10 August 2012, together with a copy of any proposed draft order. Only the legal representatives of Mr Eastman complied with that request. The DPP instead has filed no suggested variation to the court’s orders but has filed submissions seeking to cavil with the original orders made and, in effect,
25
seeking to withdraw from its previous position of not opposing the orders sought by Mr Eastman.
The proposed amended orders which counsel for Mr Eastman requested I make today reflect my intention on 10 August 2012 based on the non-opposition to those orders by the DPP. I understood that such non-opposition was based on considered instructions. The attempt to cavil with the orders made on 10 August is, in effect, illustrative of a view that the Full Court in Eastman v Marshall is incorrectly decided. I have much sympathy for that view; however, the DPP is responsible for the outcome of that judgment, having made no attempt at the hearing before the Full Court to seek to defend that judgment I previously made that I had no jurisdiction to embark on the inquiry.
This led to the ACT Executive appearing before the Full Court to support the argument of Mr Eastman that the jurisdictional judgment was incorrect. Success in that regard permitted the ACT Executive after the Full Court decision, which it urged, to avoid deciding for itself whether to order an inquiry. These circumstances allowed the matter to proceed before the Full Court with no contradictor. The entire saga of the Eastman jurisdictional issue has been attended with a bizarre attitude by the DPP. The DPP now seeks to further muddy the waters in an inappropriate way.
The only way to place an inquiry into Mr Eastman’s conviction on a completely secure footing and lead to an urgent hearing of such an inquiry would be for the ACT Executive to have the intestinal fortitude to order an inquiry itself under its undoubted powers to do so. This whole sorry saga is the reason why I will not be making myself available to sit again on this court in any capacity once my reserved judgments in three recent Court of Appeal matters have been published, together with any reserve judgments after what will be my final week sitting as an additional judge of the ACT Supreme Court, subject to publication of any reserve judgments.
68. His Honour then amended the order of 10 August 2012. The only amendment was to
limit the inquiry to the matters contained in the amended application and to attach a
copy of the application to the order.
The inquiry 69. On 7 September 2012 the Executive appointed Duggan AJ as a board of inquiry to
inquire into Mr Eastman’s conviction “in relation to those matters contained in the
amended application for inquiry filed in the ACT Supreme Court on 10 August 2012,
a copy of which is attached to this instrument, and in relation to no other matter”.
70. On 27 September 2012 the Director filed a document entitled “Submissions on the
scope of the inquiry”, in which he contended “that the Board should limit the inquiry
26
to matters that fall within the pre-conditions of section 422”. The submissions largely
reproduced the submissions made to the primary decision-maker on 3 September
2012. They were in both form and substance little more than a submission that the
order for the inquiry should not have been made. No attempt was made to define the
limits of the inquiry.
71. On 8 November 2012 Duggan AJ heard oral submissions in relation to the scope of
the inquiry. In the course of the Director’s submissions Duggan AJ asked the
Director:
(1) To confirm “that there is no right of appeal against an order on (sic) inquiry”,
which the Director confirmed.
(2) Whether there was any avenue of judicial review of the order for an inquiry, to
which the Director responded: “Well, any review would be in the nature of an
administrative review as an administrative decision”, while expressing some
reservation about the question of standing.
72. The Director emphasised that the criteria in s 422 were cumulative, so that there had
to be compliance with every aspect of s 422 before an order could be made.
73. Duggan AJ ruled that he had “no jurisdiction or power” to take the course urged upon
him by the Director “to refuse to inquire into the matters identified in the order [of the
primary decision-maker] so as to determine whether those grounds answer to the
descriptions set out in section 422”.
74. This ruling was not challenged and the board of inquiry proceeded to gather evidence.
75. More than eight months later, on 22 July 2013, Duggan AJ disqualified himself from
further involvement in the inquiry because of a conflict of interest and the following
day the Executive revoked his instrument of appointment and appointed Martin AJ as
27
the board of inquiry. The terms of his Honour’s appointment were identical to the
terms of his predecessor.
76. Martin AJ held directions hearings on 5 August 2013 and 4 October 2013. Two days
later in the month were allocated to hear argument on the scope of the terms of
reference and written submissions were exchanged in the meantime.
77. On 10 October 2013 the Director filed written submissions bearing the title
“Interpretation of the matters stated in the order for Inquiry”. The Director submitted
that the board was required to construe the orders made by the primary decision-
maker on 3 September 2012 so as to ensure that they were valid and that the inquiry
was conducted “within its jurisdiction”. The submission canvassed much the same
ground covered in the submissions made to Duggan AJ.
78. On 5 and 6 November 2013 Martin AJ heard oral submissions in relation to s 422(1)
and the scope of the inquiry. In the course of his submissions, senior counsel for the
Director said:
… we don’t accept that what Marshall J did was a proper exercise of the power but we’re not asking your Honour to make a ruling … (inaudible) …
79. Martin AJ rejected the Director’s submissions. In the course of giving his reasons, his
Honour said:
I am required to comply with both the instrument of my appointment and the terms of the order made by Marshall J. The scope of the inquiry is primarily determined by reference to the terms of the order. However, it must be said that in some respects paragraphs of the order are ambiguous and couched in language more appropriate for submissions than terms of an order.
…
In making the order of 3 September 2012, Marshall J specifically recorded that he had found that the amended application filed on 10 August 2012 complied with section 422(1) of the Act. In other words, his Honour was satisfied that the conditions [which must be satisfied before the court may order an inquiry] had been met.
…
28
There has been no attempt to challenge the validity of [Marshall J’s] order in judicial proceedings.
…
Notwithstanding the language in which the written submission is couched … the submission leaves no room for doubt that the Director is suggesting that the Board should go behind the order of Marshall J and determine for itself whether the subject matter for the inquiry ordered by his Honour satisfies the conditions specified in section 422(1).
…
The jurisdiction of the Board does not depend on the Board being satisfied that the conditions specified in section 422 have been fulfilled. The jurisdiction to inquire is found in the instrument of appointment coupled with the order of the Supreme Court.
As a matter of principle, a body performing an administrative function is required to perform that administrative function in accordance with the instrument or judicial order which confers jurisdiction and directs the performance of that administrative function. It is no part of that administrative function to inquire into the validity of the instrument or judicial order. There is no power to decline to comply with the order before the body performing the administrative function is of the view that the instrument or order is invalid.
Applying these principles, it would be inappropriate for me to investigate with respect to each paragraph of the order whether the particular doubt or question satisfies the condition specified in section 422(1).
… if the terms of an order lead to ambiguity as to the scope of the particular inquiry, having regard to background circumstances which provide the context in which the order was made might assist in determining the scope of the particular inquiry intended by the executive and Marshall J.
80. After hearing further submissions, Martin AJ proceeded to identify the matter to
which each paragraph in the amended application annexed to the primary decision-
maker’s order was directed.
81. On 11 November 2013 the board began hearing oral evidence. Four days later the
Director filed the application the subject of the present proceeding. By the time the
Court adjourned on 11 December 2013 the board had heard evidence from some 15
witnesses. By the time judgment was reserved on 21 February 2014 that number had
risen to 36.
29
Is the application competent? 82. Mr Eastman, the Attorney-General and the ACT argue that the application is not
competent. The first contention is that review of any kind is precluded by s 425 of the
Crimes Act. The second is that an application under the ADJR Act may not be
brought because the primary decision-maker’s order and Martin AJ’s “ruling” were
not decisions made under an enactment within the meaning of the Act and, in any
event, cannot be brought against Martin AJ because decisions made under the
Inquiries Act are expressly excluded from the ADJR Act. The third contention is that
prerogative relief is not available because neither the primary decision-maker’s order
nor Martin AJ’s “ruling” directly affects the Director’s legal rights or amounts to a
step in a process with possible legal consequences for him and, in any event, the
Court does not have the power to issue prerogative relief directed to itself.
83. As we have already mentioned, the Director accepts that the ADJR Act cannot apply
to the decision of Martin AJ. The other contentions must be rejected.
Is judicial review precluded by s 425 of the Crimes Act? 84. We turn first to the contention that judicial review is precluded by s 425. The
argument is based on some remarks of the Full Court in Eastman v Besanko and
buttressed by reference to the Explanatory Memorandum to the Crimes Legislation
Amendment Bill 2001. The contention was advanced by Mr Eastman. This is the
issue that generated the constitutional question. The Director contended that, if
s 425(2) on its proper construction precludes judicial review of a purported decision
to order an inquiry under s 424, being an administrative decision, then s 425(2) would
be invalid, referring, amongst other cases, to Kirk v Industrial Court of New South
Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales
(2010) 239 CLR 531 (“Kirk”).
30
85. For the following reasons we are satisfied that s 425(2) does not preclude judicial
review of such a decision.
86. This Court is not bound to follow the Court of Appeal’s reasons in Eastman v
Besanko.
87. First, it is not part of the ratio decidendi that s 425(2) precludes judicial review.
88. Second, to the extent that there is any common reasoning in Eastman v Besanko, the
context is different. That case concerned whether an applicant aggrieved by a
decision not to order an inquiry had a right to judicial review. This case concerns the
capacity to review a decision to order an inquiry. All members of the Court in
Eastman v Besanko relied on the terms of s 425(1), which states that an applicant has
no right to an inquiry.
89. Penfold J said at [27] that she had no doubt that s 425(1) was intended (in conjunction
with the other provisions of Part 20) to ensure that, “while an application under s 424
was required before the Supreme Court could exercise its power under that section,
the application did not give the applicant any further rights (or indeed obligations) in
relation to the Supreme Court’s subsequent dealings with the application”. Her
Honour did not refer to s 425(2).
90. Dowsett J observed at [83]:
Whilst the wording of s 425 may arguably leave open the possibility of review under the ADJR Act, the intention to exclude both appeal and review is clear enough when one has regard to the explanatory memorandum. Further, when one keeps in mind the fact that the whole procedure is intended to be an exceptional supplement to the appellate process, and to provide a statutory regime to take the place of the exercise by the Executive of the royal prerogative, it seems most unlikely that the Legislature intended that a person who had no right to an order for an inquiry should nonetheless be able to seek review of a decision that there be no inquiry.
91. The Explanatory Memorandum declared:
Section 557E Rights and duties in relation to orders for inquiries
31
The purpose of this section is to make it clear that decisions about ordering an inquiry are purely discretionary and are not subject to appeal or review. This reflects the intention that inquiries be ordered only where all other ways of addressing the matter have been exhausted and where there are compelling reasons for reconsidering the conviction.
(Emphasis added.)
92. Section 557E was the predecessor of s 425.
93. Dowsett J referred to the relevant provisions of the Legislation Act 2001 (ACT)
(“Legislation Act”), which permit recourse to extrinsic material like an explanatory
memorandum in order to work out the meaning of an Act, which is defined in s 138 to
include “confirming or displacing the apparent meaning of the Act”.
94. Dowsett J concluded (at [87]) that Parliament intended to exclude a challenge to a
decision under s 424 by way of either an appeal or a review, including judicial review.
He said that that purpose was achieved, “albeit clumsily”, by s 425. He explained
that, “[w]hilst, as a matter of common legal terminology, an appeal is distinct from an
application for review, it is not impossible that the word ‘appeal’ was used to
encompass review.” He added: “Any other approach seems to produce a very
curious result”. Indeed in the next paragraph he described as absurd the notion that
there would be review of the decision of one member of the Court by another, with a
right of appeal to the Court of Appeal.
95. Graham J, who also relied on the Explanatory Memorandum, was similarly of the
opinion that the decision of the Supreme Court on an application for inquiry was not
open to appeal or review.
96. There are, with respect, numerous difficulties with these opinions.
97. First, any exercise of statutory interpretation must begin with the text, albeit that the
words are to be interpreted in context and having regard to the legislative purpose.
The difficulty with the proposition that s 425 precludes judicial review is that it flies
32
in the face of the text. The section, in terms, only excludes appeals. It does not
exclude judicial review. Section 34B of the Supreme Court Act gives the Court the
power to grant orders in the nature of prerogative relief. Certain decisions are
excluded from review under the ADJR Act. They are set out in Schedule 1 to the Act.
A decision under the Inquiries Act is one such decision. No party suggested that a
decision to order an inquiry under Part 20 of the Crimes Act was caught by any part
of Schedule 1.
98. An application for judicial review is not an appeal. Judicial review is more limited
than an appeal. A court reviewing an administrative decision may not substitute its
own decision for that of the administrator. Generally speaking, judicial review is
concerned with the process of decision-making or the limits of the decision-maker’s
powers. If Parliament had intended to exclude judicial review, it would surely have
said so. One of the matters which the Court is required to take into account in
deciding whether extrinsic material should be considered in working out the meaning
of the Act or in deciding the weight to be given to that material is the desirability of
being able to rely on the ordinary meaning of the Act: Legislation Act, s 141.
99. Second, no member of the Court in Eastman v Besanko referred to the High Court’s
judgments in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
(“Plaintiff S157”) or Kirk.
100. In Plaintiff S157 the Court held that a privative clause in the Migration Act 1958 (Cth)
does not oust review for jurisdictional error. That clause appears in s 474(1) of the
Act, which purports to exclude both appeals and reviews of any kind (stating that
certain decisions – “privative clause” decisions – “must not be challenged, appealed
against, reviewed, quashed or called in question in any court”) and which expressly
33
provides that a privative clause decision “is not subject to prohibition, mandamus,
injunction, declaration or certiorari in any court on any account”.
101. Gleeson CJ noted that privative clauses are construed “by reference to a presumption
that the legislature does not intend to deprive the citizen of access to the courts, other
than to the extent expressly stated or necessarily to be implied” (citing Public Service
Association of South Australia v Federated Clerks’ Union of Australia, South
Australian Branch (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ).
102. Earlier, in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 55–56,
which was cited by Gleeson CJ in Plaintiff S157, Mason CJ had said of privative
clauses that “notwithstanding the wide and strong language in which these clauses
have been expressed, the courts have traditionally refused to recognize that they
protect manifest jurisdictional errors or ultra vires acts”.
103. In Kirk the High Court considered the effect of a privative clause in the Industrial
Relations Act 1996 (NSW), which purported to preclude both appeals and reviews of
any kind and which was expressed in similar language. There, the question was
whether the NSW Court of Appeal could and should have made orders in the nature
of certiorari to quash orders for the convictions of a company and a director of that
company for offences against the Occupational Health and Safety Act 1983 (NSW).
At [100] the plurality said that “[l]egislation which would take from a State Supreme
Court power to grant relief on account of jurisdictional error is beyond State
legislative power”.
104. Contrary to the submission by Mr Eastman, there is no good reason to conclude that
the reasoning in Kirk should not also apply to Territory Supreme Courts.
105. A similar issue arose for consideration in Wainohu v New South Wales (2011) 243
CLR 181.
34
106. Section 35 of the Crimes (Criminal Organisations Control) Act 2009 (NSW)
purported to exclude the jurisdiction of the Supreme Court to undertake judicial
review of declarations made by a Supreme Court judge that a particular organisation
was a “declared organisation”. Such a declaration could be made if the judge was
satisfied that members of the organisation associated for the purpose of organising,
planning, facilitating, supporting or engaging in serious criminal activity, and the
organisation represented a risk to public safety and order in the State. It relevantly
provided that, save for a limited right of appeal conferred by s 24 of the Act, the
exercise of such a function could not be:
(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.
This was so regardless of whether the proceedings related to a question of compliance
or otherwise with the provisions of the Act or the rules of natural justice. For more
abundant caution, Parliament also stipulated that the section had effect despite any
provision of any other law (whether written or unwritten) and “proceedings” was
defined to include “proceedings for an order in the nature of prohibition, certiorari or
mandamus or for a declaration or injunction or for any other relief”.
107. In Wainohu French CJ and Kiefel J said at [15] that “[i]t was not in dispute” that the
effect of the decision in Kirk is that “the section would not prevent a person from
seeking prerogative relief in the Supreme Court of New South Wales on the ground of
jurisdictional error”. At [89] Gummow, Hayne, Crennan and Bell JJ said of the
purported ouster of the Supreme Court’s jurisdiction in respect of judicial review that
“[t]he effectiveness of that exclusion is denied by the decision in [Kirk]”. The
function conferred upon judges of the Court in that case was described as an
35
administrative, not a judicial act. Compare s 424(4) of the Crimes Act (see [14]
above).
108. In any case, with the possible exception of Dowsett J, the opinions expressed by the
Full Court in Eastman v Besanko were limited to the capacity of an applicant for an
inquiry to seek judicial review of a decision to refuse to order an inquiry. Their
Honours said nothing about whether an application might be brought by the Director
or some other person with standing to seek judicial review of a decision to make an
order for an inquiry, more particularly, where the decision to do so was infected by
jurisdictional error. Indeed, the issue does not appear to have crossed their minds.
109. If, on the other hand, the opinions were intended to go further and to apply to an
application of the kind brought by the Director in the present case, then we would
respectfully disagree. To the extent that Dowsett J expressed an opinion that judicial
review of the kind brought by the Director was precluded by s 425, his reasons are
obiter. In our opinion, Parliament’s intention was to preclude appeals, but not judicial
review for legal or jurisdictional error.
110. For our part, we are unable to derive any assistance from the Explanatory
Memorandum. It is not clear what was meant by the words “or review”. In
particular, it is not at all clear that the intention was to exclude judicial, as opposed to
merits, review. For the reasons set out below, the better view is that the intention was
not to exclude judicial review. In any event, the words in the Explanatory
Memorandum should not and cannot be read in lieu of the text. In Re Bolton;
Ex parte Beane (1987) 162 CLR 514 at 518, Mason CJ, Wilson and Dawson JJ stated:
The words of a Minister must not be substituted for the text of the law … It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear.
36
The function of the Court is to give effect to the will of Parliament as expressed in the law.
111. Similarly, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
(Northern Territory) (2009) 239 CLR 27 (“Alcan”) at [47], Hayne, Heydon, Crennan
and Kiefel JJ said:
Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
112. This principle was reiterated by the High Court in Commissioner of Taxation v
Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 at [39].
113. It is wrong to have regard to extrinsic material like an explanatory memorandum
“before exhausting the application of the ordinary rules of statutory construction”:
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [33].
114. When courts speak of the intention of the Parliament, they are referring to the
objective intention of the legislation, not the subjective intention of the Minister. As
Spigelman CJ observed in Harrison v Melhem (2008) 72 NSWLR 380 at [16]:
The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament … The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; Re Bolton; Ex parte Beane (at 518); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (at 168–169); Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 6 [10] and see the authorities discussed in R v Young (at 686 [5]).)
See also Mason P’s comments to similar effect at [159]–[160].
115. That is not to say, however, that the Court should not consider the legislative context
or the mischief the section was intended to address. In order to discern the meaning
of the text it may be necessary to consider the context, “which includes the general
37
purpose and policy of a provision, in particular the mischief it is seeking to remedy”
(Alcan at [47], footnotes omitted).
116. The Crimes Legislation Amendment Bill 2001 was presented to Parliament on
15 June 2001. This was after Mr Eastman’s second application for an inquiry into his
conviction under s 475 of the Crimes Act but it seems likely that it had been drafted
well before it. Indeed, there is good reason to believe that the amendments were
made against the background of an anticipated application by Mr Eastman for an
inquiry. In his second reading speech the Attorney-General referred to Mr Eastman,
reminding members of Parliament that, after his unsuccessful High Court appeal
against his conviction, he had indicated his intention to seek an inquiry under s 475.
He explained that the section reproduced an English provision developed before
criminal appeals were permitted. He said it had never previously been used in the
ACT and that its equivalent in NSW had been “substantially amended, largely to
overcome the gaps and uncertainties in the operation of the provision as previously
drafted”. He went on to say:
It is thus timely to review the ACT’s provision ... Now that appeals are available in criminal matters, there is considerable duplication between the matters that may be canvassed in a criminal appeal and the matters which can be considered in an inquiry under section 475. Further, the provision provides only the barest of guidance as to how inquiries are to be conducted and what options are open at their conclusion. Perhaps the major shortcoming of section 475 is that the only options at the end of the inquiry are either to do nothing or to exercise the executive prerogatives to quash a conviction or remit a sentence. There is no facility to have a case retried where the inquiry shows that there was a procedural defect in the original trial.
The bill resolves these deficiencies by clearly articulating the processes for initiating and conducting an inquiry, and includes the option of ordering a fresh trial at the conclusion of the inquiry should the court consider this appropriate. The new inquiry process is intended to supplement, not duplicate, the criminal appeals structure and is expected to be invoked only in cases where evidence of a miscarriage of justice – for example, DNA evidence which exonerates the accused, or a confession by the real offender –comes to light after all opportunities for appeal have been exhausted.
(Emphasis added.)
38
117. This does not suggest an intention to oust judicial review, merely an intention that the
inquiry process would not duplicate the appeals process.
118. It is apparent from the terms of Part 20 that Parliament was concerned to ensure that
inquiries be ordered only in special circumstances, that is to say where all the criteria
set out in s 422(1) have been satisfied. That object is furthered, not frustrated, by
judicial review. It is unimaginable that Parliament would have intended to exclude an
application that sought no more than that the power to order an inquiry be confined
within its statutory limits. Basten JA pointed out in Sinkovich v Attorney General of
New South Wales [2013] NSWCA 383 (“Sinkovich”) at [46], “[t]he history of judicial
responses to privative clauses … is one of antipathy”. We accept the Director’s
submission that “very clear words” would be needed before Parliament would be
taken to have intended to preclude judicial review.
119. While the Legislation Act provides that in working out the meaning of an Act the
interpretation that would best achieve the purpose of the Act is to be preferred to any
other interpretation (s 139) and while the Court may have regard to extrinsic material
(ss 141(1), 142), whether the section excludes judicial review must be determined
objectively. What the Minister who presents or sponsors a Bill may say about the Bill
(whether in an explanatory memorandum or a second reading speech) cannot be used
to give the legislative text a meaning it cannot reasonably bear: Newcastle City
Council v GIO General Limited (1997) 191 CLR 85 at 113 (McHugh J).
120. As Gageler and Keane JJ eloquently put it in their dissenting judgment in Taylor v
The Owners – Strata Plan No 11564 [2014] HCA 9 at [65]:
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
39
121. Notwithstanding the broad meaning given to the expression “working out the meaning
of an Act” in s 138 of the Legislation Act, nothing in that Act justifies reading
“appeal” to include judicial review. There is no ambiguity about the meaning of the
word “appeal”. Its apparent or ordinary meaning is neither manifestly absurd nor
unreasonable and, especially in the light of the High Court jurisprudence, there is no
good reason to displace that meaning.
122. In view of our construction of s 425(2), it is neither necessary nor desirable for the
Court to express an opinion on the constitutional question.
Is the application under the ADJR Act incompetent? 123. The argument that the application under the ADJR Act is incompetent is based on the
decision of the High Court in Griffith University v Tang (2005) 221 CLR 99 (“Tang”)
and the Court of Appeal’s application of it in Eastman v Besanko. It was an argument
advanced by the Attorney-General and embraced by Mr Eastman. It is misconceived.
124. The ADJR Act provides for judicial review of “a decision of an administrative
character made ... under an enactment (whether in the exercise of a discretion or not)”.
125. In Eastman v Besanko Dowsett J said that it was arguable that the decision not to
order an inquiry was not a decision of an administrative character, but came to no
conclusion on the matter. Graham J said it was. Penfold J expressed no opinion. At
first instance Edmonds J said that there was no doubt that the decision was of an
administrative character. Here, there was no dispute that the decision of the primary
decision-maker was a decision of an administrative character. In our view, that must
be right. The Crimes Act states in s 424(4) that proceedings on an application for an
inquiry are not judicial. Dowsett J said (at [90]) that it did not necessarily follow that
40
any decision was administrative in nature for the purposes of the ADJR Act, but, with
respect, his Honour’s reasoning is unconvincing.
126. In Varley v Attorney-General in and for the State of New South Wales (1987) 8
NSWLR 30 (which was not mentioned in Eastman v Besanko) a majority in the NSW
Court of Appeal (Hope JA, Samuels JA agreeing) held that the power of the Supreme
Court to order an inquiry under s 475 of the Crimes Act 1900 (NSW) was
administrative in nature. In Patsalis v Attorney General for New South Wales (2013)
303 ALR 568; [2013] NSWCA 343 (“Patsalis”) Basten JA (Bathurst CJ and Beazley
P agreeing) appears to accept that the power of the Supreme Court to order an inquiry
under the current NSW provisions of the Crimes (Appeal and Review) Act 2001
(NSW) (Part 7) is an administrative one. In Kazzi v R [2014] NSWCCA 73 (“Kazzi”)
at [5] Leeming JA stated that the power being exercised in granting an application for
an inquiry is “an administrative determination”. His Honour said that was
“established by Patsalis”. The language used in the NSW Act is not the same as the
language in the ACT statute. Even so, there is no reason to conclude that a different
view should be taken of the nature of the power to order an inquiry under Part 20 of
the ACT Act. Both the NSW and the ACT statutes provide that proceedings on an
application are not judicial proceedings, and that no appeal lies from a decision as to
whether to order an inquiry.
127. The remaining question is whether the decision was made “under an enactment”. The
answer to that question depends on whether the decision was expressly or impliedly
required or authorised by the enactment and whether the decision itself conferred,
altered or otherwise affected legal rights or obligations: Tang at [89].
128. In Eastman v Besanko, a majority of the Court of Appeal (Penfold and Graham JJ)
held that the decision not to order an inquiry was not made under an enactment
41
because it did not itself confer, alter or otherwise affect legal rights or obligations.
Edmonds J at first instance had reached the same conclusion. The decision in the
present case, however, was to order an inquiry.
129. The Attorney-General submitted that successive decisions of this Court have
confirmed that whether a report of an inquiry into a conviction be characterised as a
decision or as conduct leading to a decision by the Executive, it did not require or
authorise a decision by the Executive or confer, alter or otherwise affect legal rights
or obligations.
130. With respect, this submission misses the point. The decision which is challenged is
not a report of an inquiry. Furthermore, in Tang at [89] the High Court accepted that
it was unnecessary that the relevant decision affect or alter existing rights or
obligations. It is enough “that the enactment requires or authorises decisions from
which new rights or obligations arise”.
131. Part 20 of the Crimes Act requires or authorises decisions from which new obligations
on the part of the Director arise. As a result of the primary decision-maker’s order,
the Executive was bound to establish an inquiry into the matters set out in
Mr Eastman’s application. Having regard to the terms of the order, in that inquiry the
Director would be called to account for his conduct at the trial, in the High Court and
in the application for an inquiry before Besanko J.
132. As Duggan AJ put it when granting the Director leave to appear at the inquiry,
“[t]hroughout the terms of reference allegations are made concerning the failure of the
prosecution to raise certain issues, call certain evidence or take various courses of
action”. Those allegations include failing to assist the court on the question of
Mr Eastman’s fitness to plead (ground 2), neglecting its duty to disclose information
casting doubt on the credibility of a key forensic witness (ground 5), failing to elicit
42
certain other evidence (grounds 6 and 15), making a false assertion that no witness
had heard the fatal shots (ground 7), and leading factually incorrect or substantially
misleading evidence, often in circumstances which were unfair to Mr Eastman
(ground 17). They also include an implicit allegation of impropriety in failing to
disclose psychiatric reports which could have called into question the reliability of
confessional evidence (ground 16).
133. It was inevitable that the Director would be served with subpoenas to produce
documents. It was also highly likely that former members of his office would be
subpoenaed to give evidence. In these circumstances, there can be no doubt that the
order gave rise to obligations on the part of the Director.
134. For these reasons we are satisfied that the order made by the primary decision-maker
is a decision to which the ADJR Act applies.
Does the Director have standing to bring the application? 135. This proved to be a non-issue, at least insofar as the ADJR Act application was
concerned. Ultimately, assuming s 425(2) did not preclude judicial review, and
assuming that the primary decision-maker’s order was a decision to which the ADJR
Act applied, no-one argued that the Director did not have standing to bring the
application.
136. Section 4A is in the following terms:
Who may make an application under this Act
(1) An eligible person may make an application under this Act, subject to subsections (2) and (3).
(2) If the application relates to a category A decision, or conduct engaged in for the purpose of making the decision, the person may make the application only if—
(a) the person’s interests are, or would be, adversely affected by the decision, failure to make the decision, or conduct engaged in for the purpose of making the decision; or
43
(b) if the decision is of a kind that is proposed in a report or recommendation—the person’s interests are, or would be, adversely affected if the decision were, or were not, made in accordance with the report or recommendation.
(3) If the application relates to a category B decision, or conduct engaged in for the purpose of making the decision, the person may make the application unless—
(a) an enactment does not allow the person to make the application; or
(b) each of the following apply:
(i) the interests of the eligible person are not adversely affected by the decision or conduct;
(ii) the application fails to raise a significant issue of public importance.
(4) The Supreme Court may at any time, on application by a party, refuse to hear the application or dismiss the application if satisfied that the applicant is not an eligible person.
(5) In this section:
category A decision means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under—
(a) the Heritage Act 2004; or
(b) the Planning and Development Act 2007, other than a decision under that Act mentioned in schedule 1.
category B decision means a decision to which this Act applies, other than a category A decision.
137. It is common ground that the Director is an eligible person within the meaning of the
Act. An “eligible person” is defined in the Dictionary to the Act to include an
individual.
138. The decision to order an inquiry is a category B decision. Subsection 4A(3) enables
an eligible person to bring the application unless the enactment does not allow the
person to do so, or alternatively, the interests of the person are not adversely affected
by the decision and the application fails to raise a significant issue of public
importance. As we have found that s 425 does not preclude the Director from
bringing the application, the only questions are whether his interests are not adversely
44
affected by the decision and whether the application fails to raise a significant issue of
public importance.
139. It is indisputable that the application raises a significant issue of public importance
concerning the scope of the Court’s powers to order an inquiry into a conviction.
140. Furthermore, for the reasons given above, the Director’s interests are plainly affected
by the decision. In DPP v Eastman, Whitlam and Gyles JJ held (at [33]) that the
Director was a person whose interests were relevantly adversely affected by Miles
CJ’s decision to order an inquiry into Mr Eastman’s conviction. The reason their
Honours gave was that the circumstances of the inquiry were such that there would
inevitably be examination of the processes of the Director’s office and the conduct of
individual officers.
141. In any case, after DPP v Eastman was published, the Director of Public Prosecutions
Act 1990 (ACT) was amended (effective 1 November 2003) to add to the functions of
the Director in s 6 a new subsection ((1A), later renumbered subs (2)), which reads as
follows:
To remove any doubt and without limiting subsection (1), the functions of the director include the following:
(a) appearing before a board of inquiry under the Crimes Act 1900, part 20 (Inquiries into convictions);
(b) for civil proceedings (including appeals) connected with or arising out of the exercise by the director of a function under this Act or a proceeding in relation to which the director has a function—
(i) beginning proceedings; or
(ii) conducting proceedings, whether begun by the director or not; or
(iii) responding to proceedings.
142. As Mr Eastman pointed out in his written submissions, the impetus for these changes
was his own challenge to the Director’s standing to bring the action in DPP v
Eastman.
45
Is relief under s 34B of the Supreme Court Act available? 143. Mr Eastman, the Attorney and the ACT all submitted that judicial review is not
available to the Director under s 34B of the Supreme Court Act. Two contentions
were advanced. First, it was said that the Court may not make an order in the nature
of the prerogative writs directed to itself or to a judge exercising the Court’s power.
Second, it was said that an order of this kind will not be made where the relevant
decision does not directly affect the legal rights of the applicant or constitute a step in
a process that may result in legal consequences for the applicant. That is said to be
the position here. In other words, it is contended that neither the primary decision-
maker’s order nor Martin AJ’s ruling directly affected the rights of the Director or
subjected his rights to a new hazard.
144. We reject both contentions.
145. In support of the first contention, the respondents relied on Re Jarman; Ex Parte Cook
(1997) 188 CLR 594 in which, the High Court by majority (Toohey, Gaudron and
McHugh JJ dissenting) held that the Industrial Relations Court of Australia did not
have the jurisdiction to issue writs of mandamus or prohibition to a judge exercising
the jurisdiction of that Court. Re Jarman, however, is distinguishable. In contrast to
the position in this case, it was concerned with an application for prerogative relief
against a determination of a superior court judge of a Chapter III court acting in a
judicial capacity.
146. In Patsalis Basten JA (with whom Bathurst CJ agreed on this point) held that a
decision of a judge of the Supreme Court of NSW not exercising a judicial function
was amenable to judicial review if the decision was affected by jurisdictional error,
and that the immunity of a superior court judge from correction for non-jurisdictional
error of law did not extend to a determination made when the judge was not acting in
46
a judicial capacity (at [35]). In such a case, the Court could set aside the decision and
grant declaratory relief. It will be recalled that the relevant “non-judicial
determination” in Patsalis was a decision of a Supreme Court judge to refuse to order
an inquiry into Mr Patsalis’s conviction under Part 7 of the Crimes (Appeal and
Review) Act, which is relevantly similar to the provisions in Part 20 of the Crimes
Act.
147. Basten JA referred to the fact that the majority in DPP v Eastman proceeded on the
basis that judicial review was available in respect of Miles CJ’s decision to direct an
inquiry under s 475 of the Crimes Act. Basten JA noted (at [27]) that when the matter
went on appeal to the High Court (Eastman v Director of Public Prosecutions of the
Australian Capital Territory (2003) 214 CLR 318) the Court’s identification of the
issues did “not suggest that the function of judicial review, in one form or another,
was not properly invoked”. His Honour noted that the majority in the Full Court
clearly considered that judicial review proceedings were available as the effect of
their order was to set aside the Chief Justice’s decision to order an inquiry. His
Honour went on to say:
As explained by the majority in the Full Court of the Federal Court, it would seem to be wrong in principle that a determination to hold an inquiry, involving mandatory powers to call witnesses and subject them to examination, should be exercised in circumstances where the power to direct such an inquiry has not arisen.
148. It is true, as Mr Eastman pointed out, that in Sinkovich (a judgment handed down only
two days after Patsalis), notwithstanding the conclusions reached in Patsalis, Basten
JA expressed doubt (based on Re Jarman) about the availability of an order of
mandamus directed to the Supreme Court. Sinkovich was also concerned with the
review of a decision made by a judge of the Supreme Court under the Crimes (Appeal
and Review) Act. Ultimately, however, only the claim for declaratory relief was
47
pressed and the Court granted that relief. As a result the Court did not decide whether
mandamus was available. In any event, in the present case, the Director does not seek
an order in the nature of mandamus.
149. Finally, we should note that the position taken in this case by Mr Eastman, the
Attorney and the ACT is directly contrary to the position taken in Eastman v
Marshall. In that case Mr Eastman and the Attorney intervening submitted that Re
Jarman was distinguishable because it concerned the exercise of Commonwealth
judicial power. The Full Court accepted that submission. Mr Eastman submitted that
Eastman v Marshall was wrongly decided. The submission was odd, to say the least,
as he was the one seeking the relief he now says should never have been granted. If
that is right, then the primary decision-maker would certainly not have had the power
to order an inquiry. Nonetheless, we reject that submission. Whilst there was no
contradictor on the point in that case, we are not persuaded that the Full Court was
wrong. Neither Mr Eastman nor the Attorney provided an adequate or convincing
explanation for his change of position. Despite their argument, the Attorney and the
ACT informed the Court that it was not their position that the decision in Eastman v
Marshall was incorrect.
150. In support of their second contention, Mr Eastman, the Attorney and the ACT relied
on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (“Ainsworth”) and
Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149 (“Hot Holdings”). The
relevant principle that emerges from those decisions is not in doubt. It is that relief in
the nature of certiorari is not available where the decision under challenge does not
either “directly determine, or of [its] own force affect, rights” or “satisfy some
condition precedent to the exercise of power which will in turn affect rights or
otherwise give rise to legal consequences”: Hot Holdings at 161; see also Ainsworth
48
at 580 and R v Collins; Ex parte ACTU Solo Enterprises Pty Ltd (1976) 8 ALR 691 at
699.
151. Mr Eastman, the Attorney and the ACT submitted that the primary decision-maker’s
order satisfies neither of these tests. We reject the submission.
152. While it may be that the primary decision-maker’s order does not directly affect the
rights of the Director, clearly enough it satisfies a condition precedent to the exercise
of power which will have legal consequences for him. The order is a condition
precedent to the exercise of the Executive’s power to appoint an inquiry. A board so
appointed then has the powers conferred by the Inquiries Act, amongst other things, to
issue search warrants (s 20) and compel people to give evidence at a hearing or
produce documents (s 26). Given the terms of the order, the past professional conduct
of employees of the Director’s office will be the subject of close and critical scrutiny.
As we have already observed in the context of the challenge to the competency of the
application under the ADJR Act, there could be little doubt that the Director or
employees of his office would be compelled to produce documents. Indeed that
appears to have already occurred. Likewise, it is clear that former employees of the
Director’s office would likely have been required to give evidence before the board.
It follows that the second test referred to in Hot Holdings is satisfied here and relief in
the nature of certiorari is available.
Should time be extended to permit the Director to seek prerogative relief in relation to the primary decision-maker’s order? 153. Any application for orders in the nature of prerogative relief was required to be filed
no later than 60 days after the order was made: Court Procedures Rules, r 3557.
Even taking 3 September 2012 as the date when the order was made, that means that
the Director should have filed his application by 2 November 2012. The Court may
49
extend time, but only in “special circumstances”: r 3557(4). No such qualification
attaches to the application made under the ADJR Act, but not a great deal turns on
this. In Jess v Scott (1986) 12 FCR 187 (“Jess v Scott”) at 195 the Full Court said of
the analogous power under the former Federal Court Rules (O 52, r 15(2)) to grant
leave to file a notice of appeal out of time “for special reasons”, that notwithstanding
a 21-day time limit:
What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.
154. The Full Court described the test as “elastic” and “flexible”, “suitable for application
across a range of situations, from an oversight of a day to a neglect persisted in during
a prolonged period”, whilst acknowledging that “something very persuasive indeed”
would be required to justify a grant of leave after a period, say, of a year.
155. There is no reason to take a different approach to the construction of the expression
“special circumstances” in the Court Procedures Rules. Whatever else may be said in
this case, the circumstances are certainly out of the ordinary. The more difficult
question is whether the discretion should be exercised in the Director’s favour.
156. An application for an order of review under the ADJR Act must be brought within 28
days of the day a document containing the terms of the decision was given to the
applicant or within such further time as the court may allow: ADJR Act, s 10. The
evidence does not clearly indicate when the Director was given such a document but
as the order was made on 10 August 2012 and corrected on 3 September 2012, it is
50
reasonable to infer that the Director received a copy then or, if not, shortly thereafter.
A person may apply to the Court for the period to be extended. The person’s right to
make the application and the Court’s power to grant it are both conferred by s 151C of
the Legislation Act. The discretion to extend the time may be exercised before or
after the period has lapsed: s 151C(3).
157. Neither the ADJR Act nor the Court Procedures Rules impose any fetters on the
exercise of the discretion. Ultimately, the only issue is whether it is in the interests of
justice to grant the extension. As the Full Court of the Federal Court said in Jess v
Scott at 188:
[L]eave to appeal out of time is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula[.]
158. Nevertheless, there are a number of principles which guide the resolution of that
issue. The decision most often cited is Hunter Valley Developments Pty Ltd v Cohen
(1984) 3 FCR 344 (“Hunter Valley v Cohen”), a case concerned with an application
for an extension of time under the Administrative Decisions (Judicial Review) Act
1977 (Cth), which summarised the effect of earlier authorities.
159. The governing principle is that legislative time limits are not to be ignored.
Applications for extension of time will only be granted where it is proper to do so. It
will be proper to do so only where it is fair and equitable in the circumstances. It is
up to the applicant (here the Director) to persuade the Court that it would be fair and
equitable to extend the time. In summary, the following non-exhaustive
considerations, drawn from Jess v Scott and Hunter Valley v Cohen, bear upon the
exercise of the discretion:
(1) The length of the delay;
51
(2) Whether there is an acceptable explanation for the delay;
(3) Whether the case raises questions of general importance;
(4) The extent of any prejudice to the defendant, including any prejudice in
defending the proceedings that is caused by the delay, although absence of
prejudice alone is not sufficient to justify a grant of an extension;
(5) Whether the interests of third parties have been affected;
(6) The wider public interest;
(7) The merits of the substantive application.
160. It is important to bear in mind, however, as Burchett J put it in Pozniak v Minister for
Health (1986) 9 ALN 256 at 256, that these considerations are “signposts to guide the
court’s discretion”, not “fences to limit the breadth of the field”.
161. The Director submits that an extension of time should be granted for the following
reasons.
162. First, the process for considering and determining the application for an inquiry
“fundamentally miscarried” with the result that an inquiry has begun which is entirely
outside that contemplated by the statutory scheme. Denying relief because of delay
would be tantamount to allowing the board to continue to conduct an extensive
inquiry, affecting the interests of a large number of people and at significant public
expense, where the primary decision-maker’s order for the inquiry was made in
jurisdictional error. There is a public interest in preventing the expenditure of
considerable public resources on such an inquiry.
163. Second, there is a prospect that an interested person could bring separate proceedings
at any time challenging the validity of the primary decision-maker’s orders. Since the
time these submissions were made, Mr Barnes, the ballistics expert whose conduct is
52
the subject of several of the inquiry’s terms of reference, sought to join in the
Director’s challenge.
164. Third, it is in the interests of justice that the issues concerning the validity of those
orders be resolved now. Otherwise public confidence in the inquiry and the validity
of the report it generates may be jeopardised.
165. Fourth, the circumstances in which the issue arises and the invalid order has
continuing effect are very unlikely to occur again.
166. Fifth, the prejudice that would flow to Mr Eastman from terminating the present
inquiry would be limited, given that he has already had “the benefit of past
applications and a past inquiry into various matters” and he has a continuing
entitlement to the lawful determination of any future application he may care to make.
167. Sixth, since shortly after 10 August 2012 all parties involved in the inquiry have been
aware of the Director’s contention that the order for the inquiry was defective.
Difficulties with the order were raised repeatedly – before the primary decision-maker
and before each board of inquiry.
168. Finally, the remarks made by Martin AJ on 5 and 6 November 2013 support the
conclusion that there are problems with the validity of the orders.
169. The Director relies on these considerations to support his application for an extension
of time for the purposes of both the application under the ADJR Act and the
application for orders in the nature of prerogative relief.
170. There is much to be said in favour of the Director’s position.
171. First, the case unquestionably involves matters of general importance.
172. Second, the application plainly has merit.
173. It suffices for present purposes simply to refer to the fact that the primary decision-
maker deliberately avoided considering s 422(1)(f) of the Crimes Act although it
53
imposed an express constraint on his power to order an inquiry. At no point did his
Honour purport to satisfy himself that an application had not previously been made to
the Court for an inquiry into the doubts or questions raised in the amended
application. In proceeding in this way, his Honour misconceived his statutory duty
and failed to complete the statutory task. This was a jurisdictional error: see, for
example, Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW)
416 at 420 (Jordan CJ); Minister for Immigration and Multicultural Affairs v Yusuf
(2001) 206 CLR 323 at [41] (Gaudron J). Recently, it has been said that
“[d]isregarding an express constraint is likely to be the clearest example of
jurisdictional error”: Wang v Farkas [2014] NSWCA 29 at [41] (Basten JA, Bathurst
CJ and Beazley P agreeing).
174. Mr Eastman complained that he will suffer “significant prejudice” if the time to
challenge the primary decision-maker’s orders is extended. He submitted that the
only inquiry he has had was confined to the question of his fitness to plead, whereas
this one is “wide-ranging” and is something for which, to the knowledge of the
Director, he has fought “long and hard”. He also submitted that considerable funds
had been outlaid for his representation as well as the engagement of an overseas
expert, subject to special funding arrangements with the ACT Government.
175. There is no doubt that Mr Eastman has been pressing for a wide-ranging inquiry for a
long time. Nor is there any doubt that his expectations were raised by the course the
Director took or, more accurately, by the Director’s failure to challenge the primary
decision-maker’s orders within time. It is also true, as Mr Eastman submitted, that if
the Court were to extend time and the Director were to prevail, he will have to start all
over again. But there is no suggestion that the delay has in any way affected his
capacity to defend these proceedings. There is no question here of relevant evidence
54
being lost and no-one submitted that the recollections of witnesses had been affected
by the lapse of time (cf. Brisbane South Regional Health Authority v Taylor (1996)
186 CLR 541). Nor did Mr Eastman incur financial costs that he would otherwise not
have incurred. The funding arrangements to which he referred in his submissions
ensured that he received a grant of assistance from the Legal Aid Commission of the
ACT conditional upon the Commission receiving additional funding from the ACT
Government for his representation.
176. On the other hand, there are also powerful reasons militating against the grant of an
extension. While there is, indeed, a public interest in preventing the expenditure of
considerable public resources on an inquiry which lacks jurisdiction, there are a
number of factors pulling in the opposite direction.
177. First, the delay is excessive. While it is not unheard of for a court to grant an
extension of time where there has been a delay of this magnitude (see, for example,
Wedesweiller v Cole (1983) 47 ALR 528 where the delay was in the order of 11
months), cases of this kind are exceptional.
178. Second, as Mr Eastman put it, the Director is not an unsophisticated litigant. He is to
be taken to have been aware of the need to act swiftly and of the risks of not doing so.
179. Third, much has happened since the orders were made. French J said in Seiler v
Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at
96:
The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration. If the relevant decision-maker or others act upon a decision after the prescribed period expires then the objective of efficient administration may be compromised if the decision can be challenged and set
55
aside after that expiry. Time and resources may have been expended to no effect.
180. The board began its investigation in November 2012. No doubt vast amounts of
money have been spent in the meantime. The full amount is unknown.
Administrative staff, a paralegal, two solicitors and several counsel were appointed to
assist the board. Significant sums were spent training staff. As at 19 November 2013
the evidence before this Court shows that the board had served 44 subpoenas to
produce documents (including seven on the Director) and that the board had issued 49
subpoenas to give evidence. As at the same date the board had obtained 39 affidavits
and four expert reports. As at 19 February 2014, there had been 26 days of public
hearings and 36 witnesses had given evidence. As at the same date, the Board had
obtained and received 89 affidavits and expert reports and issued 70 subpoenas to
produce documents. It was then anticipated that another 23 witnesses would be called
and that public hearings would be completed by the end of March or early April 2014.
All parties to the inquiry have undoubtedly run up substantial costs. Unchallenged
evidence given to this Court by Mr Eastman’s solicitors showed that by 2 December
2013 the Legal Aid Commission of the ACT had incurred or committed to spending
more than $2 million in legal fees alone and over $270,000 in witness expenses for
one overseas expert. By now these costs would have multiplied.
181. Fourth, while it is true that since 3 September 2012 the Director maintained that the
orders made by the primary decision-maker were invalid, he never indicated to the
board or to Mr Eastman that he had any intention of challenging them directly.
182. That brings us to the Director’s explanation for the delay.
183. When the hearing began, the explanation, such as it was, came from Ms Kent. She
stated that she was told by the Director that he considered whether to seek judicial
56
review of the primary decision-maker’s order but decided not to “in part because of
concerns about whether he had standing to seek such a review” (emphasis added).
She went on to say that “[t]he legislation provides [that] the judge considering an
application for an inquiry may consider written submissions by the Director (section
424(3) Crimes Act 1900 (ACT)), but affords no right of appearance on the
application”.
184. This account raised many more questions than it answered. It is self-evident that it
was only part of the explanation. What was the full explanation? And what were the
concerns about standing that the Director entertained? If they were held purely
because there was no right of appearance, when did the Director change his mind?
What caused him to change his mind? The only direct evidence relating to the
Director’s concerns about standing was weak. On 8 November 2012 during argument
before Duggan AJ the Director said:
the only possible avenue of review would be an administrative type review. There is an issue, I suppose, of standing of parties to bring any such review.
185. The nature of the issue was unstated. Having regard to what Whitlam and Gyles JJ
said in DPP v Eastman in the passage to which we referred at [140] above, the
assertion to Duggan AJ that there was an issue is perplexing, all the more so in the
light of the amendments to the Director of Public Prosecutions Act. In this Court the
Director, himself (through his counsel), argued that any question of standing was put
beyond doubt by those amendments.
186. Mr Eastman submitted that the explanation was disingenuous. He invited the Court to
conclude that the Director made a calculated decision not to seek judicial review but
to allow the inquiry to be established and proceed on limited “‘terms of reference’, for
which the DPP would (and did) contend”. The Director’s response to this submission
57
was merely to emphasise that he “sought through the inquiry process itself to resolve
the issues with the validity and scope of the inquiry”. That is true but it does not
answer Mr Eastman’s submission and, as will be seen, it was entirely misguided.
187. Where, as here, a party seeks an indulgence from the Court, the Court expects full and
frank disclosure. The incomplete second-hand account in Ms Kent’s affidavit fell
dismally short of that expectation.
188. In December 2013, during the second day of the hearing, the Court raised with
Mr Game, senior counsel for the Director, its concerns about the inadequacy of the
explanation that had been offered. Before the Court adjourned on 11 December 2013,
Mr Game foreshadowed calling further evidence. After the adjournment and shortly
before the hearing resumed in February, Mr White filed his affidavit. Nothing was
said about why this evidence was not presented to the Court in the first place.
189. Mr White’s affidavit began with a recitation of the history of the proceeding before
the primary decision-maker. Reference was made to the submissions he had made to
his Honour to the effect that the necessary preconditions for the exercise of the power
to order an inquiry had not been made out.
190. Mr White stated that before the directions hearing on 10 August 2012 he had not
given any “directions” to Mr Lundy to consent to the application for an inquiry “as it
then was”. It is not entirely clear what this means but we take it to mean (as all the
parties also seem to have done) that Mr Lundy had no instructions to consent. No
attempt was made to account for Mr Lundy’s behaviour and it remains a mystery.
191. Mr White said that he did not become aware of the amended application dated
10 August 2012 until later that day and had no opportunity to discuss the amended
application with Mr Lundy beforehand. It appears that at about this time he also
became aware that Mr Lundy had told the primary decision-maker that he did not
58
oppose the application. Yet, he did not take any steps to inform his Honour that
Mr Lundy was not authorised or instructed to consent and that the Director did not in
fact consent.
192. Nonetheless, Mr White said he was “concerned” that the primary decision-maker had
made an order for an inquiry and he considered that the grounds in the amended
application did not satisfy the requirements of s 422(1) of the Crimes Act. He then
explained that he had applied to have the matter relisted before his Honour “for
clarification of the matters for inquiry”. At the same time, however, he said he filed
written submissions arguing that “the cumulative criteria” in s 422(1) were not met
and the previous order was invalid. On 3 September 2012 he appeared in person to
speak to those submissions but failed to persuade his Honour to change his mind.
193. Mr White said that, after he returned from court on 3 September 2012, he sent an
email to the Solicitor-General, Mr Garrisson, stating that “I think we should consider
whether there are any avenues to test his [Honour’s] decision”. He said he would
request the transcript and speak further with him about it. Mr Garrisson replied that
he was happy to discuss the matter “in due course” but said that he did not think there
was “very much (if any) scope to review [the] decision”. Mr Garrisson added that
“[t]he decision of the Full Court [by which we understand him to mean the decision in
Eastman v Marshall] endorsed only a very narrow form of review … based on the
duty of the court to determine the application and a conclusion that the primary
decision-maker had not done so”.
194. The following day Mr White had a telephone conversation with Mr Garrisson in
which they discussed the possibility of judicial review. Mr Garrisson expressed the
opinion that the decision to order an inquiry was not a reviewable decision and the
two then discussed the prospect of the Director making submissions to the board
59
about the scope of the inquiry. Mr White stated that, after this conversation, he
considered what he should do and, in particular, whether he should seek judicial
review of the primary decision-maker’s order and decided not to. He explained:
I had some concerns about my standing to do so given that the proceedings before Marshall J were not judicial proceedings and I was not a party as such. I was aware the functions of the Director as outlined in section 6(2) of the Director of Public Prosecutions Act 1990 included appearing before a board of inquiry ordered pursuant to Part 20 of the Crimes Act 1900. However that did not overcome my concerns about my standing to seek a review of the decision to order an inquiry. I also relied on the views of the Solicitor-General about the reviewability of the decision, though I did not consider our discussions as being legal advice provided by him that I should necessarily follow. I decided that due to my concerns about standing and the uncertain state of the law in the ACT as explained by the Solicitor General with regards to judicial review of decisions made by the Supreme Court pursuant to Part 20 of the Crimes Act 1900 I would not seek judicial review of Marshall J’s order.
Instead, I decided to make submissions to Duggan AJ, as the Board of Inquiry, as to the scope of the inquiry to be undertaken by him. This was consistent with the approach suggested by the Solicitor General which I took into account.
195. Mr White then proceeded to refer to the unsuccessful efforts before both Duggan AJ
and Martin AJ to limit the scope of inquiry.
196. It is abundantly clear from a file note annexed to Mr White’s affidavit that it was only
after Mr Game was briefed initially (with Dr Peggy Dwyer) to settle submissions to
Martin AJ in late September 2013 that the spectre of judicial review was raised again.
Both senior and junior counsel expressed the view in conference on 14 October 2013
that a review was likely, whether initiated by the Director or Mr Eastman. It is not
clear from the file note what was meant by “review” but the file note of a conference
the next day relevantly stated:
• TG of the view that we need to have a willingness to seek a review of Martin’s decision and thinks we should also seek review of Marshall’s decision (well out of time). We will get criticised for waiting so long and Martin wont (sic) like it, but it can’t be helped…
• TG notes that we have challenged the jurisdiction of an Inquiry previously and been successful. The landscape has now changed in
60
light of the decisions of Kirk and Wainohu. We were probably wrong in our 2002 submissions before Lander J…
197. This explanation is certainly fuller than that provided by Ms Kent and we accept that
it explains the delay. But it also confirms Mr Eastman’s suspicions. It demonstrates
that the Director made a forensic decision not to challenge the primary decision-
maker’s order in the court but to seek to control the terms of reference at the inquiry
itself. This course was fraught with risk. Given the inevitable implications of the
order for the Director and accepting Mr White’s evidence that he did not regard what
the Solicitor-General had said to him as legal advice, it is very hard to understand
why, before settling on his course of action, Mr White did not seek legal advice,
whether from the Solicitor-General or anyone else. Furthermore, given that the
attempt to persuade Duggan AJ to limit the terms of the inquiry had failed, it is also
hard to understand why Mr White did not then consider changing his strategy and
making an application to the court for judicial review.
198. It is no easy task to resolve the competing considerations. On the one hand, the
discretion is a very broad one. The Director’s case has undeniable merit. It also
raises matters of great importance to the administration of justice in the ACT.
Moreover, there is a real chance that other parties might seek to mount a challenge of
their own, as Mr Barnes has done. On the other hand, the delay is long.
Mr Eastman’s expectations have been raised. And there has been considerable public
and personal investment in the inquiry.
199. Still, the delay has now been explained and, as we have already observed,
Mr Eastman suffers no prejudice in answering the application. He never had a right to
an inquiry, merely a right to make an application.
61
200. In addition, the error his Honour made in expressly passing over s 422(1)(f) was an
obvious one. When it was made, Mr Eastman was represented by experienced senior
counsel. The error should have been obvious to him. In that event, consonant with
his duty to the Court, he should have pointed that out to the primary decision-maker.
Yet, he vigorously opposed the Director’s attempt to put the judge right. No doubt he
felt that was his duty to his client but where counsel’s duty to the court clashes with
his or her duty to the client, the law is clear. It is the duty to the court that must
prevail: see Rondel v Worsley [1969] 1 AC 191 at 227; Giannarelli v Wraith (1988)
165 CLR 543.
201. Mr Richter’s approach in the hearing before the primary decision-maker on
3 September 2012 is at odds with what he had submitted in writing on 23 February
2012 on the anterior question of whether the application was competent. Those
submissions concluded in this way:
The Application is not incompetent and is not precluded by s.422(1)(f). It needs to be considered on its merits and after a full exposition of the issues.
202. Whatever else might be said about the proceedings before the primary decision-
maker, “a full exposition of the issues” never took place.
203. Had Mr Richter acknowledged the obvious error in his Honour’s reasons, there was,
at least, a real possibility that his Honour would have reconsidered his decision. In
particular, there was a real possibility that his Honour would not have declined to
consider whether the condition in s 422(1)(f) had been satisfied. With the benefit of
the assistance of both counsel he might also have realised that he could not make a
decision on the limited material before him or, at the very least, that it was unwise to
do so without further reflection.
204. Then there are the public policy considerations.
62
205. The question of the costs of the inquiry is not the only relevant public policy
consideration. The Director’s application raises serious questions going to the
administration of justice and to the validity of the proceedings before the board of
inquiry. No party sought that issues relating to delay be dealt with in advance of the
hearing. In the result, the case has been fully argued.
206. In Johns v Australian Securities Commission (1992) 35 FCR 16 (“Johns”), where
there was a very late challenge to the jurisdiction of a royal commission, Heerey J
held that public policy considerations prevailed to enable the challenge to be brought.
His Honour’s decision to grant an extension of time was not disturbed on appeal by
either the Full Court (Johns v Australian Securities Commission (1992) 35 FCR 146)
or the High Court (Johns v Australian Securities Commission (1993) 178 CLR 408).
207. In Johns an application was made under the Administrative Decisions (Judicial
Review) Act 1977 (Cth) for certain orders against the royal commission into the affairs
of the Tricontinental group of companies. Mr Johns had been managing director of
those companies. Transcripts of examinations of him and others conducted by the
Australian Securities Commission (“ASC”) under oath and in private pursuant to
summonses issued under the Australian Securities Commission Act 1989 (Cth) were
made available to the royal commission. Mr Johns claimed, amongst other things,
that it was unlawful for the ASC to assist the royal commission in this way and that
there were, in any event, “fatal defects” in two delegations of the ASC’s powers. He
also alleged that there was a reasonable apprehension of bias on the part of the royal
commission and that the public hearing of final submissions would prejudice criminal
proceedings pending against him.
208. Mr Johns had 28 days from 11 February 1991 to bring the proceedings but did
nothing until January 1992, although he knew by 31 July 1991 of the proposal by the
63
royal commission to make use of his evidence “in the very way” about which he later
complained. In the meantime the royal commission proceeded at “great expense to all
concerned” and in the absence of any protest from Mr Johns, with the result that the
ASC material became “inextricably intertwined” in the proceedings. Heerey J said
that these considerations meant that there was “considerable force” in the ASC’s
submissions in opposition to the grant of an extension. But his Honour went on to
say:
In my opinion, considerations of public policy weigh strongly in favour of a grant of the extension sought. An attack has been made on the legal validity of the Royal Commission’s proceedings in a fundamental respect. This has now been fully argued over a trial lasting five days. I think there would be a substantial risk to public confidence in the Royal Commission’s conduct of its proceedings and any subsequent report were these issues to remain unresolved.
209. Johns is certainly not on all fours with the present case. Mr Johns was in a different
position from the Director and one of the contributing causes to the delay in his case
was “a persistent refusal” by the Victorian Government to give him legal assistance, a
matter which Heerey J considered significant. Yet, similar observations can be made
in the present case. Here, too, notwithstanding the vast expense incurred in
prosecuting the inquiry and the lengthy delay, considerations of public policy weigh
heavily in favour of a grant of an extension. An attack has been made on the legal
validity of the proceedings before the board of inquiry “in a fundamental respect”. As
in Johns, this matter was also fully argued over five days. As in Johns, there would
also be here a substantial risk to public confidence in the conduct of the inquiry and in
the report it generates if these issues remained unresolved.
210. On balance, having given the matter anxious consideration, we are of the opinion that
the Director should have an extension of time to bring these proceedings. This is no
ordinary case. While the Director’s forensic decision not to challenge the orders in
64
the first place and the length and consequences of the delay count against him, the
interests of the administration of justice and the broader public interest favour the
resolution of the questions it raises. Given the merits of the application, the
importance and gravity of the issues and the fact that the matter has been fully argued,
the better course in the circumstances is to grant the Director leave, deal with the
parties’ arguments and weigh in the balance the matters raised against the grant of
leave in the context of deciding whether the Court should exercise its discretion to
refuse relief.
The application by Mr Barnes 211. It is convenient at this point to deal with Mr Barnes’s application.
212. Mr Barnes is a forensic scientist who gave ballistics evidence for the prosecution at
Mr Eastman’s trial. Seven of the paragraphs of the amended application (and
therefore seven of the inquiry’s terms of reference) are concerned with his evidence at
the trial. They are paragraphs 5–11 inclusive.
213. Mr Barnes claims to have “particular, personal and identifiable interests” which have
been adversely affected both by the primary decision-maker’s decision and
Martin AJ’s interpretation of the terms of reference. In particular, he contends that his
reputation and commercial interests may be “seriously affected by the resolution of
the allegations being made before the judicial inquiry”. For this reason he argued that
he has a personal interest separate and distinct from the Director’s. His application is
supported by his affidavit sworn on 17 February 2014, upon which he was not cross-
examined.
214. The Court heard Mr Barnes’s application on 20–21 February 2014. We rejected
Mr Barnes’s application for leave to intervene for reasons we delivered orally at the
conclusion of argument. But as the issues attending the joinder application were to
65
some extent intertwined with the substantive issues in the Director’s application, the
Court considered it expedient to proceed on the basis that Mr Barnes might be joined
and reserved our decision on whether he should be.
215. Mr Barnes’s evidence, given in his affidavit, was that he first became aware of the
inquiry when he was served with a subpoena to produce documents in February 2013.
Although he received a copy of the terms of reference at the same time, he stated that
he had no memory of having read them. As he was not cross-examined, his statement
is unchallenged. He claimed to have acquired concerns about the scope of the inquiry
for the first time on 2 September 2013 during a conversation with counsel assisting.
216. On 11 October 2013 Mr Barnes received a subpoena to give evidence at the inquiry.
217. On 18 November 2013, in a telephone conversation with counsel assisting, Mr Barnes
was informed that he might be criticised in a public inquiry. Counsel assisting
advised him to obtain legal representation. Soon afterwards Mr Barnes left the
country on a long-planned overseas holiday with his wife. Apparently the trip was
due to take place in early May 2013 but had to be postponed after he had been
diagnosed with a malignant melanoma, which was surgically excised.
218. On 29 November 2013 Martin AJ granted Mr Barnes leave to be represented at the
inquiry while he was giving evidence and when relevant expert witnesses gave their
evidence to enable his counsel to cross-examine them. In granting leave his Honour
said:
The forensic work conducted by Mr Barnes in relation to the murder of Mr Winchester between 1989 and 1995 (inclusive) is the subject of investigation in this inquiry. To date that investigation has been extensive and includes matters regarding the professional reputation of Mr Barnes. By section 18 of the Inquiries Act 1991 (ACT), I am required to comply with the rules of natural justice. Given the nature of the investigation concerning Mr Barnes and the materials gathered to date, it is my view that it is appropriate for him to have legal representation at relevant times during the inquiry.
66
219. Mr Barnes requested that the board fund his legal representation and his appearance
as an expert at the inquiry. His request for funding as an expert was denied, but on
18 December 2013 the ACT undertook to pay his reasonable legal costs (including the
costs of engaging solicitors and senior and junior counsel). That undertaking,
however, was limited to his evidence, albeit that it included preparation. It excluded
the costs of retaining lawyers for the purpose of examining or cross-examining other
witnesses.
220. The joinder application was made under r 220 of the Court Procedures Rules and s 12
of the ADJR Act.
221. Mr Barnes adopted the Director’s arguments on the substantive issues, submitting that
the primary decision-maker did not give proper consideration to the requirements in s
422(1) of the Crimes Act in respect of each of the proposed terms of reference and
that it was not open to the primary decision-maker to conclude that s 422(1) had been
satisfied. He also joined with the Director in submitting that Martin AJ erred in not
limiting the inquiry by reference to s 422(1).
Joinder under r 220 222. Rule 220 of the Court Procedures Rules reads as follows:
Court may include party if appropriate or necessary
(1) The court may order that a person be included as a party to a proceeding if–
(a) the person ought to have been included as a party; or
(b) including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.
(2) The court may make an order under this rule–
(a) at any stage of the proceeding; and
(b) on application by the person or a party to the proceeding or on its own initiative; and
67
(c) whether the person to be included should be a plaintiff or defendant.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
223. If an order is made that a person be included as a party, r 242 provides that the date
the proceeding starts in relation to that person is taken to be the date when the order is
made, unless the Court appoints another date. But the Court is not permitted to
appoint another date if that would bring the proceeding within a limitation period
which would otherwise apply.
224. Rule 3557, which relates to extensions of time, also applies to Mr Barnes. The effect
of the rules, then, is that Mr Barnes needs to satisfy the Court that there are special
circumstances which enable the Court to extend the time to enable him to challenge
the order made by the primary decision-maker and the ruling of Martin AJ and that
the Court should exercise its discretion in his favour. In this respect we refer to the
principles discussed in [153]ff above.
225. The questions then are: ought Mr Barnes to have been included as a party (the first
limb of r 220(1)) or is his inclusion as a party necessary to enable the Court to
adjudicate effectively and completely on all issues in dispute (the second limb), and
should he be given leave to proceed despite the delay?
226. Mr Barnes relied on the second limb. Although he initially argued that he ought to
have been included as a party within the meaning of r 220(1)(a), he later accepted that
the first limb was not engaged. Rather, he submitted that, having regard to the central
importance of his opinions in a number of the inquiry’s terms of reference, his
inclusion as a party was necessary to enable the Court to adjudicate effectively and
68
completely on all issues in dispute in the proceeding, within the meaning of
r 220(1)(b).
227. Mr Barnes argued that he was not responsible for the Director’s delays, his
circumstances were “special” within the meaning of r 3557(4) and, having regard to
his explanation for his own delay, the merit of his application and the lack of
prejudice to the other parties, his application should be granted. He submitted that he
raised his concerns about the breadth of the inquiry with the board at the earliest
opportunity after obtaining legal assistance.
228. Rule 220 is in substantially the same terms as O 6 r 8 of the former Federal Court
Rules (Federal Court Rules 1979 (Cth)). The intention of rules of this kind is “to
avoid where reasonably practicable a multiplicity of proceedings”: News Limited v
Australian Rugby Football League Limited (1996) 64 FCR 410 at 524 (“News v
ARL”).
229. Here, if the Court were to proceed to judgment without adding Mr Barnes as a party
and to find against the Director, he would not be precluded from bringing proceedings
himself but it would be inefficient and productive of unnecessary costs to require him
to do so. In any case, by the time those proceedings were heard and determined relief
might be futile. Further, if the Full Court were to find against the Director on any
matter of substance, then the principles of judicial comity would stand in his way.
230. Nevertheless, the question is whether Mr Barnes’s joinder is necessary to enable the
Court to adjudicate effectively and completely on all issues in dispute in the
proceeding. Mr Barnes’s interests may be affected by an order of this Court, at least
indirectly. It may be convenient to add him as a party. But this is not sufficient to
bring him within the terms of r 220(1)(b): cf. Trade Practices Commission v Westco
Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 386.
69
231. All matters in dispute in the proceeding may be effectively and completely
determined without Mr Barnes. He advances the same arguments and seeks the same
relief as the Director. It follows that he is unable to bring himself within the second
limb of r 220.
Joinder for the purpose of the ADJR Act application 232. The test under the ADJR Act, however, is quite different.
233. Section 12 allows an “eligible person” to apply to the Court to be made a party to an
application made under the ADJR Act. There is no dispute that Mr Barnes meets the
definition of an eligible person.
234. There appears to be no authority on the approach to be taken to s 12. Certainly, no
party cited any. The section was amended by the Administrative Decisions (Judicial
Review) Amendment Act 2013 (ACT) (which commenced on 26 September 2013).
Previously, s 12 stated that a “person interested in a decision, conduct or failure in
relation to which an application has been made to the Supreme Court” may be joined.
The explanatory statement offers no rationale for the change.
235. The discretion under s 12 is unconstrained in its terms. The section allows the Court
to grant a joinder application, either unconditionally or subject to conditions. Plainly,
however, the Court would not accede to such an application unless there was a real
possibility of the applicant’s rights or interests being affected by the decision under
challenge in the proceeding or the orders sought in the proceeding.
236. In this case Mr Barnes wants to be added as a plaintiff. The Court would not add him
as a plaintiff unless he was able to make an application himself. That means that he
must satisfy the terms of s 4A(3) of the ADJR Act, which, it will be recalled, prevents
a person from bringing an application where an enactment does not allow it or,
alternatively, where the person’s interests are not adversely affected by the decision
70
under challenge and the application fails to raise a significant issue of public
importance. Having regard to our conclusions in relation to the scope and meaning of
s 425 of the Crimes Act, we are satisfied that Mr Barnes is not prevented by any
enactment from bringing an application. As we have already observed in relation to
the Director’s application, the application does raise a significant issue of public
importance.
237. There are authorities relating to the equivalent provision of the Commonwealth Act –
Administrative Decisions (Judicial Review) Act 1977 (Cth) (also s 12) – but the
sections differ in their terms. Section 12 of the Commonwealth Act relevantly
requires that the applicant be “a person interested in a decision”, being a decision in
relation to which an application has been made to the Court. But the principles that
apply to the exercise of the discretion in each case are equally applicable here.
238. In Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2010] FCA
1118 at [17] Kenny J observed that there are three principal factors to be considered
in the exercise of the discretion: the nature of the applicant’s interest in the
proceeding; the attitude of the other parties; and the effect of joinder on the
management of the proceedings (cf. Fordham and State of Victoria v Evans (1987) 14
FCR 474), noting the risk that in joining a party the burden of the litigation will
become excessive (see Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 474).
239. Here, Mr Barnes’s interest is in protecting his reputation and ultimately his livelihood.
The Director supports his application. The other active parties – Mr Eastman and the
ACT – oppose it. The effect of joinder on the management of this case is negligible,
however, as Mr Barnes essentially adopts the submissions of the Director.
240. Mr Barnes would not be able to make an application himself, of course, unless the
Court were persuaded to excuse his delay: ADJR Act, s 10. The delay in his case is
71
also a lengthy one. Still, he has provided an explanation in his affidavit. In
substance, his position was that he knew about the inquiry and received a copy of the
terms of reference in February 2013 but did not remember reading them then and was
unaware that he might have had a right to challenge the order to establish the inquiry
until he received legal advice in January this year. It is difficult to believe that
Mr Barnes would not have read the terms of reference when they were sent to him.
Nevertheless, no party called into question his explanation and, unlike the Director, he
is not a lawyer.
241. In all the circumstances, we consider that an extension of time for Mr Barnes to bring
his application is warranted. Although the delay is long and although Mr Barnes’s
explanation for his delay is not entirely satisfactory (particularly since he was
apprised of the terms of the inquiry as early as February 2013), we accept his
explanation. Moreover, although he did not say so, it is reasonable to infer from what
he did say that he had other matters on his mind during 2013 which might very well
have distracted him from the implications for him of the terms of reference.
242. More significantly, as with the Director’s extension of time application, the merits of
Mr Barnes’s judicial review application, the importance and gravity of the issues
raised by it, and the fact that the matter has been fully argued, all weigh in favour of
an extension.
243. For all these reasons we are prepared to accede to Mr Barnes’s application to be
added as a party. Since he supported the Director, he should be added as a plaintiff.
As we mentioned earlier when dealing with the Director’s application for an extension
of time, the decision to allow Mr Barnes’s joinder application does not mean,
however, that the lengthy delay and its consequences will not count against him when
the Court comes to consider whether it should exercise its discretion to refuse relief.
72
Joinder of the ACT 244. As we mentioned at [7], the Director made a late application to add the ACT as a
defendant. The application was made on 11 December 2013 in reliance on r 220 of
the Court Procedure Rules.
245. Rule 220 of the Court Procedures Rules is set out at [220] above.
246. The Director sought to add the ACT as a defendant for the purpose of addressing an
asserted defect in the original application. The original application failed to address
the possibility that, even if the primary decision-maker’s order was set aside, the
instruments of appointment made by the Executive would survive (as Mr Eastman and
the Attorney argued).
247. The ACT did not seek to be heard on the application that it be added as party. Mr
Eastman opposed the application, arguing that the amendments would necessitate an
adjournment, and that an adjournment would prompt the Director to make an
application for interim relief.
248. The Court determined that the ACT should be added as a defendant and the associated
amendments should be allowed. At the time we gave no reasons but indicated that we
would do so at a later date.
249. In short, these are those reasons.
250. The amendments were important to enable the complete adjudication of all issues in
dispute in the proceedings (the second limb of r 220(1)). The proceedings are of
significant public interest and the Court considered that it was highly desirable that all
issues be resolved.
251. The amendments caused no significant prejudice to Mr Eastman. Although the
proceedings had been expedited, by 11 December 2013 it was apparent that, in any
event, the proceedings had to be adjourned to February 2014 so that the requisite
73
notices could be given under s 78B of the Judiciary Act. Regardless of whether the
amendments were allowed, the Director proposed to seek interim relief. The Court
anticipated that the amendments would not add substantially to the hearing time
required.
What is the nature of the s 422(1) gateway? 252. The competing contentions are that the matters referred to in s 422(1) are
jurisdictional facts, which must exist before the power to order an inquiry is
enlivened, or pre-conditions to the exercise of the power about which the primary
decision-maker alone must be satisfied. In other words, are those matters to be
objectively established or are they dependent upon an opinion being formed by the
primary decision-maker? The answer is immaterial for the purposes of the ADJR
application.
253. Recently, in Public Service Association and Professional Officers’ Association
Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA
116, Basten JA explained at [75]:
The existence of “jurisdiction” in a particular case may depend upon the construction of a relevant law, the application of law to facts as found, or the existence of particular facts. (It may depend upon a combination of these elements; indeed, such a tripartite classification will often appear artificial.) With respect to facts, the question is usually reformulated so as to inquire whether the legislation confers jurisdiction on a tribunal on the basis of its satisfaction as to the existence of certain facts, or whether those facts must be established to the satisfaction of a reviewing court. If the latter is the correct construction of the legislation, the fact itself is described as “jurisdictional”.
254. In that event, the decision to order the inquiry will be affected by jurisdictional error if
the Court finds that any one of those facts did not exist at the time of the decision:
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [37].
255. It is not always a simple matter to decide whether a statutory pre-condition is a
jurisdictional fact. The case law, as Professor Aronson observed some 13 years ago,
74
is difficult to reconcile: “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17
at 39. Little has changed in this respect.
256. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR
144 (“Plaintiff M70”) at [57]–[58] French CJ observed:
The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself…
The question is one of statutory construction.
(Footnotes omitted.)
257. As French CJ explained (at [57]), if the exercise of power is expressly conditioned
upon the formation of an opinion or belief on the part of the decision-maker, the
existence of the necessary opinion or belief is a jurisdictional fact. But the absence of
express words to indicate that the power is conditioned on the formation of a state of
mind is not determinative:
If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
258. In Australian and International Pilots Association v Fair Work Australia (2012) 202
FCR 200 at [147] Perram J helpfully extracted a number of principles from the
dissenting judgment of Black CJ in Australian Heritage Commission v Mount Isa
Mines Limited (1995) 60 FCR 456 (approved on appeal in Australian Heritage
Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303):
75
(1) whether a statutory power is to be read as subject to the formation of an opinion
about the existence of a matter by the decision-maker as opposed to the bare (or
objective) existence of the matter itself is a question of statutory construction;
(2) the resolution of the question is helped by examining the nature of the task
given to the decision-maker. If the task is difficult and complicated, involving
the careful assessment of complex facts and the formation of opinions and value
judgments on a potentially wide range of matters, that suggests that Parliament
intended that the decision-maker was to have the power to make its own
(conclusive) determination; and
(3) the inconvenience of the conclusion that a matter is a jurisdictional fact is an
indication that Parliament is unlikely to have intended that the matter be a
jurisdictional fact.
259. With his customary clarity and insight Professor Aronson summed up the position
well when he wrote in the article referred to in [255] above at 31:
Aside from constitutional facts, the critical task is to ascertain the meaning of the relevant Act. Is it best interpreted as allowing de novo redetermination of the relevant fact in the judicial review court?
260. Here, the better view is that the legislation confers jurisdiction on the primary
decision-maker (the Supreme Court or the Executive as the case may be) on the basis
of its satisfaction as to the existence of the facts with which s 422(1) is concerned and
does not require those facts to be established to the satisfaction of the reviewing court.
Thus, although the formation of the opinion by the primary decision-maker that the
criteria in s 422(1) are established is a jurisdictional fact, the criteria in s 422(1) are
not themselves jurisdictional facts. Rather, it is for the primary decision-maker to
satisfy itself of their existence. The nature of the task is to decide whether there are
76
doubts or questions of a certain kind. The requirement in paragraph (g) that it is in the
interests of justice for the doubt or question to be considered at an inquiry strongly
points this way as it necessarily involves value judgments. In addition, several of the
criteria involve the assessment of potentially complex facts. The inconvenience
which would attend the contrary conclusion is obvious. It is highly unlikely that
Parliament intended that the original determinations would be subject to
redetermination de novo on judicial review.
261. This is consistent with the approach taken by the NSW Court of Appeal in Sinkovich.
262. It follows that it is unnecessary for this Court to decide whether the preconditions for
the exercise of the power to order an inquiry were actually made out. Rather, it is
necessary to determine whether the primary decision-maker erred in the way in which
he carried out or purported to carry out the statutory task.
Did the primary decision-maker fall into jurisdictional or other reviewable error by ordering the inquiry without determining whether any or all of the preconditions in s 422(1) of the Crimes Act were made out? 263. His Honour deliberately refrained from considering the criterion prescribed by
s 422(1)(f). For the reasons we have already given, it is clear that the orders
establishing the inquiry are infected by jurisdictional error. A concession to that
effect was made by the Attorney-General. For the purposes of the ADJR Act, this
may be characterised as a decision made without jurisdiction (ADJR Act, s 5(1)(c)) or
a decision made without taking into account relevant considerations (ADJR Act, s
5(1)(e) and (2)(b)).
264. Mr Eastman accepted that the primary decision-maker deliberately refrained from
considering paragraph (f). But he invited the Court to treat the omission as
immaterial on the basis that his Honour must inevitably have concluded that the
condition it contained was made out. We reject the submission. There is no
77
foundation for it. We respectfully agree with Martin AJ’s conclusion (at [57] of his
ruling of 18 November 2013) that the omission is likely to be due to a
misunderstanding of the Full Court’s decision in Eastman v Marshall. The Court
ordered the primary decision-maker to decide whether all the conditions in s 422(1)
had been satisfied. Martin AJ thought that his Honour “proceeded on the basis that he
was not required to consider the ‘jurisdictional question’ related to the previous
application”. Our construction is a little different, although nothing turns on the
difference. In our view, his Honour proceeded (purportedly relying on the Full
Court’s decision) on the basis that he was required to disregard the previous
application. Yet, nothing said in Eastman v Marshall authorised or justified that
approach.
265. There is another reason to reject Mr Eastman’s invitation.
266. There is a close correlation between some of the grounds in the current application
and the grounds in the application considered by Besanko J. There is nothing to
indicate that his Honour applied his mind to this circumstance. Importantly, it is
common ground that at no time before he made the order for the inquiry (either in
August or September) had he been given a copy of Besanko J’s decision. For this
reason his Honour did not have the material to enable him to form a conclusion as to
whether an application had previously been made for an inquiry under Part 20 in
relation to any of the doubts or questions raised by the amended application.
267. There is therefore no inevitability about the conclusion that, had his Honour
considered paragraph (f), he would have been satisfied that an application for an
inquiry into the doubts or questions raised in those grounds had not previously been
made to the Court. There is, at the very least, a possibility that the outcome would
have been different if his Honour had turned his mind to paragraph (f). Certainly, it
78
could not be said that the omitted factor was “so insignificant that the failure to take it
into account could not have materially affected the decision”: Minister for Aboriginal
Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (“Peko-Wallsend”) at 46;
Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 (“Lansen”) at
[121]–[122]. As Moore and Lander JJ said in Lansen:
In our view, where in an application under the ADJR Act it is established that the decision-maker has failed to take into account a relevant consideration which he or she was bound to take into account, the next question to be determined is whether the consideration was so insignificant that the failure to take it into account could not have materially affected the decision.
If it be concluded that the failure was of that kind, then the application for review must fail. If on the other hand it be concluded that the decision-maker failed to take into account a relevant consideration which was not insignificant and there is a possibility that it could have affected the decision-maker’s decision, the applicant for judicial review under the ADJR Act will be entitled to ask the court for a remedy under s 16(1) of the ADJR Act. The appropriate remedy is in the discretion of the court.
(Emphasis added.)
268. Three examples are sufficient to illustrate the point.
269. The first relates to the reliability of the ballistics evidence. Ground 5 of the current
application reads:
The prosecution neglected its duty to disclose to the defence, either before or during the applicant’s trial, information casting doubt on the veracity and reliability of a key forensic witness, Robert Collins Barnes.
270. Ground 2 of the application that Besanko J considered was described by his Honour
as:
A doubt or question about whether the applicant was guilty of Mr Winchester’s murder arises because of the unreliable nature of the forensic evidence concerning gunshot residue given by Mr Robert Barnes.
271. Besanko J’s decision (which, it will be recalled, was not before the primary decision-
maker) notes that, in support of this contention, Mr Eastman relied on the poor
79
opinions of Mr Barnes’s work in his case held by Dr Wallace, a forensic scientist
from the United Kingdom, and criticisms of Mr Barnes and his work in other cases.
Those criticisms were made by Dr Wallace and also by the Director of the Victorian
Forensic Science Centre and they were the very criticisms referred to in a letter
Mr Eastman sent to the registrar of this Court on 6 June 2011 in support of his current
application. While ground 5 of the current application is couched as a breach of the
prosecution’s duty of disclosure and ground 2 of the former application is not,
ground 5 could only be relevant if the allegedly unreliable nature of Mr Barnes’s
evidence raised a doubt or question about whether Mr Eastman was guilty of
Mr Winchester’s murder.
272. The second example of the similarity between the doubts or questions in the two
applications relates to the hypothesis that organised crime figures were responsible for
the murder.
273. Ground 13 of the current application recites:
There is a clear hypothesis contained in the evidence given to the coronial inquest and in available contemporaneous police intelligence consistent with the guilt of others who are in no way connected to the applicant. This material includes the previously considered material in inquest documents MFI 23 and MFI 130 which must be analysed in the context of other evidence led at the inquest, in particular inquest “also-ran” briefs 20 and 32. The sequence of events disclosed in evidence at the inquest and in MFI 23 relating to the informer, Giuseppe Verduci, raises cogent evidence of a conspiracy to murder Colin Winchester by a number of those directly linked to AFP Operation Seville.
274. The doubt or question raised by this ground appears to be precisely the doubt or
question raised by the first ground of the application considered by Besanko J. In his
reasons for decision, Besanko J summarised the ground as follows:
A doubt or question about whether the applicant was guilty of Mr Winchester’s murder arises because there was a reasonable hypothesis consistent with the applicant’s innocence.
80
275. Besanko J noted (at [35]) that Mr Eastman’s contention was that there was evidence
which would have supported a conclusion that Mr Winchester was or may have been
murdered by organised crime, pointing in particular to MFI 23 and MFI 130. The
application itself also referred to both MFI 23 and MFI 130 and attached copies of
these documents. It is notable that, after analysing these and other documents,
Besanko J found (at [135]–[136]) that the information contained little more than
theories and did not raise a doubt or question about Mr Eastman’s guilt. In any event,
his Honour was not satisfied that, even if the information did raise such a doubt or
question, the issue could not have been properly addressed at trial.
276. The third example concerns the surveillance evidence of Mr Eastman’s confession of
guilt, which is the subject of ground 16 of the current application. It reads:
Evidence of surveillance tapes of the applicant talking to himself in his home at night was opened by the prosecution and later led as some evidence of a voluntary and reliable confession. The prosecution was, at all relevant times, in possession of the psychiatric reports of Dr R. Milton, commissioned by the Australian Federal Police, reporting that the applicant should be regarded as psychotic and at the time he was being surveilled was possibly on medication for a severe mental disorder.
277. Ground 4 of the former application was described by Besanko J as:
A doubt or question about whether the applicant was guilty of Mr Winchester’s murder … because certain statements by the applicant which were said to incriminate him in the murder were not made voluntarily or were made as a result of a concerted and improper campaign by the police to make him confess.
278. It is clear from the terms of the application and from Besanko J’s decision that these
statements were the same statements referred to in ground 16 of the current
application. While ground 4 of the former application makes no mention of the
opinions of Dr Milton, Dr Milton’s opinions were considered in this very context by
81
the Full Court in Mr Eastman’s appeal (Eastman v The Queen at 108ff) and Besanko J
referred to the Full Court’s conclusions at [220] of his reasons for decision.
279. Relevantly, Dr Milton expressed the view that if Mr Eastman knew that he was under
surveillance by the police, he would be likely to feel “massive outrage”: Eastman v
The Queen at 48. On appeal, it was common ground that Mr Eastman knew that he
was under surveillance and that the police knew that he knew. At the time of the voir
dire conducted in the trial to determine whether the statements should be admitted
into evidence, Dr Milton’s reports had not been disclosed to the defence or to the
court. On appeal, Mr Eastman contended that the surveillance evidence should not
have been admitted into evidence. This was said to be because the evidence was
obtained improperly. The argument was that the recording was made at a time when
Mr Eastman was being subjected to “oppressive surveillance” which the police knew
or had reason to believe would be likely to cause Mr Eastman to exhibit “massive
outrage”, as predicted by Dr Milton. But the Full Court dismissed this argument
because, in the course of his submissions on appeal, Mr Eastman rejected Dr Milton’s
opinions of his mental condition. The Full Court held that rejection of those opinions
was inconsistent with the argument that the attempt by police to destabilise
Mr Eastman was or would have been successful. The Full Court also found that, even
if Dr Milton’s opinions as to Mr Eastman’s mental condition were correct,
Mr Eastman’s allegation of impropriety would still fail, as those opinions justified the
surveillance activities in place at the time.
280. In addition, the Full Court found that the evidence failed to suggest any cogent link
between the acts of police harassment alleged by Mr Eastman and the making of the
statements by him in his flat.
82
281. Besanko J referred to the Full Court’s reasons in concluding that, even if harassment
were established, there could not be said to be any causal link between the harassment
and the incriminating statements made by Mr Eastman. It was for this reason that his
Honour found that ground 4 of Mr Eastman’s application did not raise a doubt or
question within the meaning of s 422(1)(a).
282. It is also relevant that the consideration that the primary decision-maker failed to take
into account was an express requirement of the Crimes Act, rather than an implied
mandatory relevant consideration, as in the case of Peko-Wallsend. As Moore and
Lander JJ commented in Lansen at [94]:
Peko-Wallsend … concerned a consideration that was not express. It may be more difficult to approach the question of whether the failure of a decision-maker to consider a matter expressly required to be considered, on the footing that the significance or insignificance of the matter informs the answer to the question whether there has been a failure to consider it. On one view, if Parliament expressly requires a matter to be considered, then if it is not, there has been a failure satisfying the ground of review. However, we proceed on the basis that the observations of Mason J apply equally to considerations which are expressed in an Act and those which are implied. In view of our ultimate conclusion nothing turns on whether this approach is correct.
(Emphasis added.)
283. Furthermore, having regard to the exchange in court on 10 August 2012, there is real
doubt about whether, despite what he said, his Honour did in fact satisfy himself of
the other criteria in s 422(1). There is considerable force in the Director’s submission
that, in order for his Honour to find the statutory conditions had been satisfied, he
would first need to identify the doubts or questions raised by the amended application
and, then, in respect of each of them, to decide whether it was a doubt or question
about Mr Eastman’s guilt, whether the doubt or question related to evidence admitted
in a relevant proceeding or to a material fact that was not admitted in such a
proceeding (after having identified what the relevant proceedings were), whether the
83
doubt or question could not have been properly addressed in such a proceeding,
whether there was a significant risk that the conviction was unsafe because of the
doubt or question, whether the doubt or question could not now be properly addressed
in an appeal against the conviction, and whether it was in the interests of justice for
the doubt or question to be considered at an inquiry.
284. In contrast to the 66 pages of reasons given by Besanko J when refusing to order an
inquiry (into only four alleged doubts or questions), the primary decision-maker’s
short oral reasons provide no indication that his Honour undertook such an exercise.
Indeed, it is not even clear whether he had the material that would have enabled the
exercise to be undertaken. Nevertheless, having regard to the conclusions we have
reached concerning paragraph (f), it is unnecessary to make a finding either way.
Did the primary decision-maker fall into jurisdictional error in other respects? 285. The Director contends that the primary decision-maker misconstrued s 422(1); failed
to take into account the mandatory considerations in paragraphs (a), (b), (c), (d) and
(f); erroneously took into account (and gave considerable weight to) the Director’s
attitude to the application, this being an irrelevant consideration; failed to take into
account that the amended application on its face raised matters which were incapable
of falling within the terms of s 422(1); and made a decision which was manifestly
unreasonable.
Did his Honour fail to take into account mandatory considerations or misconstrue s 422(1)? 286. There is no doubt, as we have observed more than once in these reasons, that the
primary decision-maker failed to address the condition in paragraph (f). In these
circumstances, as we said at [283]–[284], it is unnecessary to decide whether,
notwithstanding what he said, he also failed to take into account the other conditions.
84
287. The refusal to consider whether the condition in paragraph (f) was satisfied also
demonstrates that his Honour misconstrued s 422(1). His approach, as we indicated
above, was based on a misreading or misunderstanding of the Full Court’s decision in
Eastman v Marshall. It appears to be for this reason that his Honour failed to
consider whether the particular doubts or questions raised by the amended application
had been the subject of the application which Besanko J rejected.
288. But we reject the contention advanced by Mr Eastman that, even if his Honour’s
consideration of the criteria was deficient, his decision would not be vitiated because
he necessarily would have concluded that each criterion was in fact made out.
Mr Eastman relied on the remarks of Moore and Lander JJ in Lansen at [121]–[122]
(extracted above at [267]).
289. There are several difficulties with this argument.
290. First, none of the criteria could be described as “insignificant”.
291. Second, this was not just a failure to take into account a relevant consideration. This
was also at least a failure to determine whether any of the particular doubts or
questions raised by the amended application had been the subject of the application to
Besanko J.
292. Third, as we have already observed, there is a close correlation between several of the
grounds in the current application and the grounds in the application considered by
Besanko J. Even assuming it was open to the primary decision-maker to conclude
that the particular doubts or questions now raised were not the subject of the previous
application, there was a substantial degree of overlap. That circumstance was plainly
relevant to whether it was in the interests of justice to have the inquiry and therefore
whether the condition in s 422(1)(g) was made out.
85
293. For example, ground 5 of the current application relates to the prosecution’s non-
disclosure of information casting doubt on the veracity and reliability of Mr Barnes.
In relation to ground 2 of the previous application (relating to criticisms of
Mr Barnes), Besanko J concluded that there was no doubt or question within
s 422(1)(a) (at [198]) or s 422(1)(c) (at [200]). Besanko J said (at [198]):
The criticisms of Dr Wallace, the comments made by courts in other cases and the criticisms of the Director of the Victorian Forensic Science Centre, do not lead me to conclude that the relevant evidence of Mr Barnes is arguably unreliable or incorrect.
294. The focus of ground 2, and hence of Besanko J’s decision, was on whether the
criticisms of Mr Barnes gave rise to a doubt or question as to Mr Eastman’s guilt.
Besanko J did not separately consider whether a doubt or question arose from the
failure of the prosecution to disclose criticisms of Mr Barnes (as contained in two
appellate judgments, a coroner’s report and an associated scientific report, and three
memoranda from the Director of the Victorian Forensic Science Centre). When the
Full Court came to review Besanko J’s decision, Mr Eastman contended that this
demonstrated that Besanko J had misconstrued s 422, by failing to appreciate that the
relevant doubt or question was as to guilt evidenced by conviction and not guilt in
fact. Dowsett J rejected this argument because Mr Eastman had not demonstrated that
at any relevant time the prosecution was aware of these materials: Eastman v
Besanko at [123]. Moreover, his Honour held (at [124]) that, even if the prosecution
was obliged to disclose information of which it should have been aware, there was no
basis for inferring that the prosecution should have been aware of these materials at
any relevant time. In any case, his Honour did not consider that the distinction
between guilt in fact and guilt as evidenced by conviction was of any significance in
this case. His Honour therefore rejected the argument that Besanko J had
86
misconstrued s 422. His Honour also rejected Mr Eastman’s argument that
Besanko J’s decision was legally unreasonable, finding that there was nothing
unreasonable about the way in which Besanko J dealt with ground 2: Eastman v
Besanko at [145]–[153].
295. In order to decide whether it was in the interests of justice to have the inquiry into the
doubts or questions raised by the various grounds involving an attack on Mr Barnes’s
evidence, it would surely have been necessary for his Honour to consider the extent to
which, if at all, Mr Eastman was relying on evidence which was not available at the
time of the earlier application or could not reasonably have been obtained. Yet, he
did not do so.
Did his Honour take into account the Director’s attitude to the application and, if so, was that a reviewable error? 296. There is little room for doubt that the primary decision-maker took into account
Mr Lundy’s advice to the Court on 10 August 2012 that the Director did not oppose
the application. Indeed, on 3 September 2012 his Honour said that the orders sought
by Mr Eastman that day (and which his Honour made) reflected his intention on the
previous occasion “based on the non-opposition to those orders by the DPP”. We do
not accept the Director’s contention, however, that the Director’s attitude to the
application is an irrelevant consideration within the meaning of the ADJR Act. It
cannot be said that, by implication from the subject matter, scope and purpose of the
Crimes Act, his Honour was obliged to disregard it: see Peko-Wallsend at 39–40.
Although the Director’s attitude is not one of the preconditions for the exercise of the
power, it might have a bearing on the way the discretion should be exercised if the
preconditions are made out. It is nonetheless true, as the Director submitted, that to
place reliance on the Director’s attitude without being independently satisfied that the
87
conditions in s 422(1) had all been met would amount to reviewable error. If this is
what his Honour did, then it amounts to an error of law and an error going to
jurisdiction. It is unnecessary, however, to reach a firm conclusion about the matter.
Did his Honour fail to take into account that the amended application on its face raised matters which were incapable of falling within the terms of s 422(1)? 297. The Director contended that the primary decision-maker also erred by failing to
consider whether the matters set out in the amended application for inquiry raised a
doubt or question capable of satisfying the conditions in s 422(1). This is really
another way of putting the first ground of review, although the argument here was
slightly different. The Director argued that:
• paragraphs 1–4 and 7 in the amended application “are not, and are not capable
of being construed as, doubts or questions about whether Mr Eastman is
guilty of the offence” (s 422(1)(a));
• paragraphs 1, 3, 4 and 7 “are not, and are not capable of being construed as,
doubts or questions that relate to any evidence admitted in a relevant
proceeding or any material fact that was not admitted in evidence in a relevant
proceeding” (s 422(1)(b));
• paragraphs 1, 3, 4, 6, 12–15 “are not, and are not capable of being construed
as, doubts or questions that could not have been properly addressed in a
relevant proceeding” (s 422(1)(c)); and
• paragraphs 18 and 19 “do not constitute, and are not capable of being
construed as constituting, doubts or questions that satisfy the requirements of
s 422(1) and which may be the subject of an inquiry pursuant to s 422(2)”.
298. These propositions, advanced in writing, were not developed in oral argument.
88
299. We have already observed that the amended application is in the nature of a
submission, rather than an application which particularises the alleged doubts or
questions and their connection to the criteria in s 422(1). While a relevant doubt or
question as to guilt might be teased out of some of the paragraphs, that is certainly not
true of paragraph 4 (relating to something that did not occur before Miles AJ) or
paragraph 7 (relating to a submission to Besanko J). Mr Eastman conceded as much
in the case of paragraph 7. Moreover, like Martin AJ, we have difficulty
understanding how paragraph 3 (the missing pages of the transcript at the special
leave hearing) could give rise to a relevant doubt or question. Paragraph 19 is no
more than a summary of the matters set out earlier in the document.
300. The mere fact, however, that the amended application itself did not clearly articulate
the doubts or questions of a relevant kind or that individual paragraphs did not, by
themselves, raise a doubt or question, does not necessarily mean that doubts or
questions capable of satisfying the various conditions appearing in s 422(1) could not
be teased out of the document. Martin AJ did so in relation to s 422(1)(a), by
identifying how the amended application could raise doubts or questions as to guilt.
For the reasons given by Martin AJ (at the hearing on 6 November 2013), we are not
persuaded that the amended application was not capable of being construed in a way
that could satisfy the criteria in s 422(1)(a), at least, although not every paragraph
taken on its own was capable of doing so.
301. Be that as it may, however, there are problems with satisfying the other conditions in
s 422(1) and it would be necessary with respect to each doubt or question as to guilt
that might arise from the amended application to consider whether it met the other
conditions. Take the conditions in paragraphs (b) and (c), for example. Paragraphs 3,
4 and 7 do not raise and are not capable of being construed as raising doubts or
89
questions relating to evidence admitted, or a material fact not admitted, in evidence in
a relevant proceeding as defined in s 421. Whether or not paragraphs 3, 6, and 12–15
were (or could have been) properly addressed in a relevant proceeding, the material
before the Court does not enable us to say. But we do not see how it was open to his
Honour to conclude (if, indeed, he did) that they were not able to be addressed in such
a proceeding. For present purposes we have assumed without deciding (against the
Director’s submission) that a “relevant proceeding” does not include an inquiry under
Part 20 or the former s 475. Besanko J came to that conclusion in relation to the
equivalent of paragraph 13 (ground 1 in the previous application for an inquiry) (at
[135]) and we see no reason to disagree with his Honour’s conclusion.
302. For these additional reasons the decision discloses error. But how should that error be
characterised? The originating application describes it as an improper exercise of
power under s 5(1)(e) of the ADJR Act by taking into account an irrelevant
consideration. We do not think this is an accurate description. In his written
submissions the Director put it differently. He argued that the fact that the matters
referred to were not capable of being construed as doubts or questions within the
meaning of one or more of the paragraphs of s 422(1) of the Crimes Act led to the
inference that his Honour failed to take the various conditions into account. In the
face of his Honour’s statement that (save in relation to paragraph (f)) he was satisfied
about the matters set out in s 422(1), we are reluctant to draw that inference. It is
sufficient to treat these errors as satisfying s 5(1)(d) of the ADJR Act, in that it was a
decision which was not authorised by the Crimes Act, being the enactment under
which it was purported to be made: see, for example, Australian Broadcasting
Commission Staff Association v Bonner (1984) 2 FCR 561 at 568 (Morling J). It
would follow that the errors go to jurisdiction.
90
Was the decision manifestly unreasonable? 303. In the light of what we have already found, it is unnecessary to answer this question.
Is the order for the inquiry outside that contemplated in s 424 of the Crimes Act? 304. The Director also contended that the primary decision-maker’s order was not of a
kind contemplated by ss 422 and 424 of the Crimes Act because it did not state the
matters in respect of which the inquiry was to be conducted. He claimed that this was
an error of the kind described in s 5(1)(c), (d), (e) and (f) and s 5(2)(h) of the ADJR
Act. That is to say, his contention was that the primary decision-maker lacked
jurisdiction to make the decision [(1)(c)], that the decision was not authorised by the
Crimes Act [(1)(d)], that it was an improper exercise of the power under the Crimes
Act because it was an exercise of power in such a way that the result of the exercise
was uncertain [(1)(e) and (2)(h)] and that the decision involved error of law [(1)(f)].
305. The Director’s contention should be accepted, for each of the reasons he advanced. It
is unnecessary to repeat what we have already said with respect to jurisdictional error
at common law and error under the ADJR Act or with respect to the limited authority
given by Part 20 of the Crimes Act to order an inquiry. On the question of the
uncertainty of the order we would say this.
306. What was required was an order of such “degree of clarity of expression and form”
that its meaning was “reasonably precise”: M Aronson and M Groves, Judicial
Review of Administrative Action (5th ed, Lawbook Co, 2013) (“Aronson and Groves”),
[6.350]. The context will affect the degree of imprecision which will result in
jurisdictional error.
307. In our opinion the primary decision-maker’s order was not sufficiently precise and
amounts to an exercise of power in such a way that the result is uncertain. The
current application does not state the matters in respect of which the inquiry is to be
91
conducted. Rather it constitutes the grounds upon which the application was made or,
as we have already observed, submissions in support of an order for an inquiry; it
does not purport to define the scope of the inquiry. That was a matter to be
determined by the Court. It was productive of uncertainty to merely adopt by
annexation the current application. In our respectful opinion, the order does not
conform to the kind of order envisaged by Part 20.
308. Section 422(2) provides that the inquiry is limited to the matters stated in the order for
an inquiry. The inquiry must be stated in the appointment of the board to be in
relation to the matter stated in the order and in relation to no other matter (s 427(2)).
Consequently, the inquiry’s terms of reference are defined by the matters stated in the
order for inquiry. Both Duggan AJ and Martin AJ struggled to make sense of several
of the terms of reference. A not insignificant amount of the inquiry’s time and
resources have been devoted to clarifying their meaning. Written and oral
submissions were invited on the scope of each term of reference.
309. Martin AJ observed that “in some respects paragraphs of the order are ambiguous and
couched in language more appropriate for submissions than terms of an order”. It is
evident that we agree with his Honour’s observation.
310. Many of the paragraphs raise questions as to the scope of the inquiry.
311. Martin AJ, for example, was driven to wonder whether the breadth of grounds 18 and
19 of the terms of reference (paragraphs 18 and 19 of the amended application), in
particular, might open up the question of whether Mr Eastman was or was not fit to
plead, although Miles AJ had already conducted an inquiry into that very matter.
312. On its face, paragraph 4 of the amended application envisages that there will be an
inquiry into whether Miles AJ was assisted by any reference to what happened at
Mr Eastman’s trial on 29 June 1995. It is difficult to see how an answer to that
92
question could raise a doubt or question as to Mr Eastman’s guilt. If it could not,
what bearing could paragraph 4 have on the scope of the inquiry? Paragraph 7 begins
with the words “a false written assertion”. Is the inquiry to proceed on the basis that
the Court has determined that the assertion is false or is to decide the question for
itself? While the paragraphs may be interpreted in such a way as to tease out of them
some questions or doubts bearing on the conviction, the order contemplated by Part
20 is one which identifies the doubts or questions to be examined by the board of
inquiry and nothing else. And what is to be made of paragraph 8?
313. We agree with the remarks made by Ms Kent in a letter she wrote on 29 August 2013
to counsel assisting the board of inquiry:
The Board is in an unusual position of having terms that are drafted extremely broadly, many of which are ambiguous and some that are in fact not terms of reference, but comment. That leaves interested parties in a very difficult position of having no guidance at this stage, as to how the terms will be interpreted, what material is relevant to an inquiry into those terms, and what material is irrelevant and should be objected to. Such matters are fundamental to the requirement to conduct an inquiry in accordance with natural justice and procedural fairness.
314. Even so, we would not regard as uncertain an order expressed in these terms if the
reasons for expressing the order in this way were exposed and those reasons were
capable of removing any uncertainty in the terms. That did not happen in this case.
Conclusion 315. For these reasons the Director has established that the primary decision-maker’s
decision and order were affected by jurisdictional error. For the same reasons he has
also established that the decision was one to which s 5 of the ADJR Act applies in
that, at least, the decision-maker did not have jurisdiction to make the decision, the
decision-maker did not take into account a relevant consideration (being s 422(1)(f) of
93
the Crimes Act), the decision was not authorised by the enactment under which it was
purported to be made, and the decision involved error of law.
The validity of the instruments of appointment 316. During the course of the hearing the Director was given leave to amend his
application to challenge the validity of the instruments of appointment of both
Duggan AJ and Martin AJ, although the submissions were directed only to the
instrument appointing Martin AJ.
317. Each instrument states that the appointment is made under ss 5 and 7 of the Inquiries
Act and s 427 of the Crimes Act. It also states that the judge is to inquire into “those
matters contained in the amended application for inquiry filed in the ACT Supreme
Court on 10 August 2012, a copy of which is attached to this instrument, and in
relation to no other matter”. The term of appointment in each case is stated to be “for
the period ending when the board of inquiry gives its report to the registrar pursuant
to [s] 428 of the [Crimes Act]”.
318. The Director argued that, if the primary decision-maker fell into jurisdictional error,
the order was in effect a nullity (“no decision at all”) relying on Bhardwaj at [51] and
Plaintiff S157 at 506. In the event that the Court were minded to set the decision
aside, the Director contended that the Inquiries Act and the Crimes Act and the terms
of the instruments interact in such a way that it would necessarily follow that the
instruments of appointment could not survive; they must also be invalid. The Director
submitted:
To appoint a board of inquiry “under” s. 427 of the Crimes Act is to undertake a particular type of exercise of the power in s. 5 of the Inquiries Act. Such an exercise of power depends for its validity on the making of an order for inquiry under s. 424 of the Crimes Act. Without such an order, neither the duty to appoint a board of inquiry under s. 427(1) nor the power to appoint a board to conduct an inquiry for the purposes of Part 20 is engaged … [A] valid order under s. 424 is a jurisdictional precondition for an appointment under the Inquiries Act. The language of s 427 and the scope
94
and object of Part 20 indicate that it was the intention of the Legislature that the Executive could only appoint a board of inquiry to inquire into a conviction, where such an inquiry is intended to be one for the purposes of Part 20, if an inquiry under Part 20 had been ordered pursuant to s. 424.
(Footnotes omitted.)
319. Mr Eastman, the Attorney and the ACT all contended that, even if the order under
s 424 were found to be invalid and were quashed or set aside, that would not
invalidate Martin AJ’s appointment and that the inquiry could lawfully continue.
320. The Attorney and the ACT submitted that the source of the power to appoint
Martin AJ as the board of inquiry is the Inquiries Act, not the Crimes Act, and for this
reason the Executive’s power to appoint the board of inquiry is “independent of” the
order made by the primary decision-maker under the Crimes Act. The primary
decision-maker’s order, it is argued, is properly characterised as simply a “factum”
upon which the Executive relies in ordering an inquiry under the Inquiries Act. The
inquiry is appointed and given force by the Inquiries Act, not the Crimes Act, though
“minor adjustments” are made by Part 20 of the Crimes Act. The result is that, even
if the order of the primary decision-maker were quashed, the inquiry could continue,
albeit as an inquiry under the Inquiries Act, not the Crimes Act.
321. Mr Eastman submissions are to like effect. He contended that the source of the power
to appoint Martin AJ as a board of inquiry depends on an analysis of the relevant
legislation (Part 20 of the Crimes Act and the Inquiries Act), rather than on the way
the instrument of appointment is drafted. Such an analysis reveals, so he argued, that
it is s 5 of the Inquiries Act, not Part 20 of the Crimes Act, that empowers the
Executive to appoint a board of inquiry. He argued that Part 20 of the Crimes Act
serves only to “trigger” the exercise of the power conferred by s 5 of the Inquiries Act
(s 427(1)), to constrain the terms in which that power is to be exercised (s 427(2), (3)
95
and (4)), and to impose a duty on the appointed board once the inquiry is finished (s
428). Section 5 of the Inquiries Act, he submitted, provides all the power that is
needed to support the appointment and once the Executive made the instrument, the
inquiry could be undertaken. Consequently, he argued, the instrument (and the
inquiry itself) is capable of surviving the setting aside of the primary decision-maker’s
order.
322. Hence, Mr Eastman, the Attorney and the ACT submitted that the inquiry could
continue under the Inquiries Act even if Marshall J’s order was quashed. They
observed, however, that this would mean that the board of inquiry would no longer be
obliged to provide a report to the Supreme Court in accordance with s 428 of the
Crimes Act. It would also mean that the Supreme Court would not have the power or
duty to act in accordance with s 430 of the Crimes Act.
323. The parties’ submissions in relation to the validity of the instruments of appointment
raise two issues. First, is the order made by the primary decision-maker an order that
remains on foot and must be followed unless and until it is set aside, even if affected
by jurisdictional error? Second, if the order is either found to be a nullity or is set
aside, what is effect on the validity of the appointment of Martin AJ? Can the inquiry
lawfully continue?
324. The answer to both questions depends on the proper construction of the relevant
statutory provisions.
325. A decision affected by jurisdictional error is not incapable of having legal
consequences: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care
(2003) 145 FCR 1 at 16 (Gray and Downes JJ). Indeed, “there is no such thing as a
complete nullity” (Aronson and Groves at [10.220]). The statements in Bhardwaj and
Plaintiff S157 have to be read in context.
96
326. As Aronson and Groves observe at [10.120], “[w]hether a decision has relevantly
adverse legal effects, and if so, how many, are questions which will receive different
answers in different contexts”. The answer in any particular case is to be derived
through a process of statutory construction from the Act which gives the decision-
maker the power to make the decision: Ma v Minister for Immigration and
Citizenship [2007] FCAFC 69 at [27], citing Project Blue Sky Inc v Australian
Broadcasting Authority (1948) 194 CLR 355 at 388–9 and Jadwan at [42] and [64].
327. Gageler J explained in New South Wales v Kable (2013) 298 ALR 144; [2013] HCA
26 (“Kable”) at [52]:
[A] purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligation, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.
(Footnotes omitted, emphasis added.)
328. A decision or order of a superior court of record, even if made in excess of
jurisdiction, must be followed unless and until it is set aside: see, for example,
Cameron v Cole (1944) 68 CLR 571 at 590; Re Macks; Ex parte Saint (2000) 204
CLR 158 (“Ex parte Saint”) at [19]–[23] (Gleeson CJ); [52]–[57] (Gaudron J); [328]
(Hayne and Callinan JJ) and Kable at [32], [56].
97
329. This Court is a superior court of record (Supreme Court Act, s 3) and in the present
case made an order. The position is complicated, here, though because the order in
question is not a judicial order (cf. Kazzi at [5]); it was not made as a result of a
determination made by a judge acting in a judicial capacity (cf. Love v Attorney-
General for the State of New South Wales (1990) 169 CLR 307 at 318–322). The
doctrine discussed in Cameron v Cole and Ex parte Saint has its genesis in the nature
of judicial power (Kable at [33], [59]), a power the primary decision-maker was not
exercising.
330. In Bhardwaj Gaudron and Gummow JJ emphasised at [47] that, subject to the
Constitution, parliament may give an administrative decision whatever force it likes.
But at [48] their Honours observed:
[L]egislative provisions should not be construed as giving rise to an implication which gives an administrative decision greater force or effect than it would otherwise have unless the implication is strictly necessary.
331. Importantly, for present purposes, their Honours said at [50]:
[O]nly if the general law so requires or the Act impliedly so directs, are decisions involving jurisdictional error to be treated as effective unless and until set aside.
332. Their Honours held at [51] that the position under the general law is that a decision
affected by jurisdictional error is a decision that lacks foundation and is properly
regarded as no decision at all. The question here, then, is whether the Crimes Act
impliedly directs that a decision to order an inquiry affected by jurisdictional error is
to be treated as effective unless and until set aside.
333. Part 20 of the Crimes Act creates a number of obligations that flow from the making
of an order for an inquiry. They include an obligation on the Executive to appoint a
board of inquiry limited to the matters stated in the order for the inquiry. Certainly
98
where the decision to order the inquiry is not the Executive’s decision, it is no part of
the Executive’s function to decide whether or not the order is lawful. It is
inconceivable that the Executive could decide to ignore an order of this Court (even if
it is not a judicial order) because it considered it to be unlawful – at least not until the
order was set aside.
334. Once the board is appointed, the Inquiries Act confers on the board sweeping powers.
We referred to these powers earlier in these reasons. Search warrants may be issued
authorising what would otherwise be a trespass and enabling documents and other
things to be seized and delivered up. People may be compelled to appear before the
board, to produce documents and other relevant things and to give evidence under
oath. They cannot avail themselves of the common law privilege against self-
incrimination and penalties may be imposed on them if they refuse to answer
questions or produce what the board requires.
335. In our view the Crimes Act impliedly directs that a decision of the Court to order an
inquiry which is tainted by jurisdictional error is to be treated as effective unless and
until set aside. The contrary conclusion is inconsistent with the statutory scheme and
would result in such a level of uncertainty and public inconvenience that a different
result could not have been intended.
336. What, then, would be the implications for the validity of the appointment of
Martin AJ if an order is made setting aside the order of the primary decision-maker?
Can the appointment remain valid, and the inquiry continue, by force of the Inquiries
Act, as contended by Mr Eastman, the Attorney and the ACT? Or must it follow that
the appointment is also invalid and the inquiry cannot continue, as contended by the
Director?
99
337. In our opinion, on the proper construction of the relevant provisions of the Crimes Act
and the Inquiries Act, the validity of the appointment of Martin AJ as a board of
inquiry and of the actions taken in reliance on this appointment (more particularly the
legal consequences of the appointment) depend on the legal force of Marshall J’s
order. They do not arise independently – under the Inquiries Act. The consequence is
that, if the order is declared to have been an invalid exercise of power, the
appointment of Martin AJ and the actions, rights and duties that flow from it must
also be invalid. The considerations that lead us to that conclusion are as follows.
338. First, an inquiry under Part 20 of the Crimes Act can only be ordered if the
preconditions in s 422(1) are satisfied. If they are not, then neither the Executive
(under s 423) nor the Supreme Court (under s 424) can order an inquiry under Part 20.
339. Second, if an order is made under s 424, the Executive must appoint a board of
inquiry: s 427(1). It has no discretion.
340. Third, the terms of the order made under s 424(1) are critical because they define the
nature and scope of the inquiry: “The inquiry must be stated in the appointment to be
in relation to the matter stated in the order, and in relation to no other matter”:
s 427(2).
341. Fourth, the sections that provide for the report by the board, the publication of the
report and the action taken on the report by the Supreme Court (Crimes Act, ss 428,
429 and 430) apply only in relation to inquiries ordered under Part 20. These are
critical features of an inquiry under Part 20. They do not (and cannot) apply to
inquiries ordered by the Executive in the independent exercise of its discretion under
s 5 of the Inquiries Act.
342. It is true that s 426 of the Crimes Act provides that the Inquiries Act applies to “an
inquiry” (defined in s 421 to mean an inquiry under Part 20). But that is subject to the
100
provisions in Division 20.3 of the Crimes Act, including the provisions to which we
have just referred. It is also true that s 427(1) provides that, if an inquiry is ordered,
the Executive must appoint a board of inquiry under the Inquires Act. But that does
not mean that the inquiry is an inquiry under the Inquiries Act. The resulting inquiry,
as provided in s 421, is an inquiry under Part 20 of the Crimes Act. Having regard to
the terms of Division 20.3 of the Crimes Act, such an inquiry is different from an
inquiry under the Inquiries Act in several fundamental respects. From the perspective
of a convicted person, the critical feature is that the resulting report must be provided
to the Supreme Court and must result in one of the orders referred to in s 430. The
Inquiries Act simply provides the machinery, including some procedure and powers,
which will apply to an inquiry under Part 20, subject to Division 20.3 of the Crimes
Act.
343. The appointment of the board of inquiry and the rights or duties that arise by reason of
that appointment depend on the continuing legal force of the primary decision-
maker’s order. They do not arise simply by force of the Inquiries Act. If the order is
quashed and set aside because his Honour exceeded his jurisdiction under the Crimes
Act, the appointment of the board of inquiry is also invalid. And the powers, rights
and duties that arise by reason of the appointment have no continuing legal effect.
344. Contrary to the submissions made by the Attorney-General, the ACT and
Mr Eastman, it is not correct that Part 20 of the Crimes Act makes only minor
adjustments to the nature of the inquiry. The provisions of Division 20.3 define the
very nature and scope of an inquiry under Part 20, as well as the results or action that
can flow from it. An inquiry under the Inquiries Act cannot result in any of the
actions under s 430 of the Crimes Act. Whilst the Attorney-General and the ACT
concede that the “legal consequences” under s 430 would not apply if the primary
101
decision-maker’s order is quashed, and that accordingly the current inquiry could no
longer be an inquiry under the Crimes Act, they maintain (as does Mr Eastman) that
there would still be an inquiry under the Inquiries Act. That submission must be
rejected. The provisions of the Crimes Act and Inquiries Act operate in such a way
that the validity of the appointment of the board of inquiry and the rights and duties
that arise from that appointment depend on whether the order for the inquiry remains
in place. The language of the relevant provisions and the statutory context make it
plain that if the order is struck down for jurisdictional error, there can be no valid
inquiry.
345. The critical question then, in relation to the validity of the appointment, is whether the
order of made by primary decision-maker should be set aside in the exercise of the
Court’s discretion. That is a subject to which we turn later in these reasons.
Did Martin AJ fall into jurisdictional error by deciding to proceed with the inquiry without regard to the limitations of s 422 of the Crimes Act or on the basis that s 422 defines the scope of the inquiry? 346. This question has been framed in terms of the error the Director contends Martin AJ
made when responding to the Director’s submission concerning the interpretation of
the matters in the “order for inquiry” and the scope of the inquiry. Mr Barnes made a
submission to Martin AJ about the scope of the inquiry on 28 January 2014 but,
despite the stance he took in this Court, he did not then take the same position as the
Director. His position was to argue for a narrow interpretation of the terms of
reference, based on their language (in particular, term of reference 5) rather than the
provisions of the Crimes Act, an interpretation Martin AJ did not accept.
347. In the event that the Court refuses to set aside the order establishing the inquiry, the
Director seeks a declaration that the primary decision-maker’s order is subject to, or
should be construed by reference to, the limitations in s 422. He also asks for an
102
order in the nature of mandamus requiring Martin AJ to conduct the inquiry in
accordance with the declaration. This relief is sought on the basis of the Director’s
contention that the board fell into jurisdictional error by deciding to proceed with the
inquiry without regard to the limitations in s 422 and by failing to conduct the inquiry
on the premise that s 422 defines the scope of the matters for the inquiry. The Director
submitted that the power to conduct the inquiry is conferred by and depends on both
Part 20 of the Crimes Act and the instrument of appointment. Mr Barnes adopted
these submissions and joined with the Director in his application for relief.
348. Before considering whether Martin AJ erred in the way the Director contends, a
number of points should be made.
349. First, the Director did not apply for any specific ruling or order from Martin AJ to the
effect that the board did not have the power to inquire into certain grounds. Nor did
Mr Barnes. Rather, each of them simply advanced a number of propositions
concerning the approach the board was required to take in conducting the inquiry.
The Director’s key proposition was that the board was required to construe the
primary decision-maker’s order so as to ensure that the orders were “valid” and the
inquiry was conducted within jurisdiction. The Director did not directly ask
Martin AJ to rule on the validity of the primary decision-maker’s order. Nor did he
contend that the inquiry was not being conducted within jurisdiction. And neither did
Mr Barnes, although, after Martin AJ declined to do as he sought, Mr Barnes’s
counsel, Dr Freckelton, indicated that he would be seeking prohibition and/or an
injunction because taking evidence from Dr Wallace would be beyond the terms of
reference. Even then, however, he did not file his application until after Dr Wallace
had given evidence.
103
350. Second, and most importantly, Martin AJ did not decide, in terms, that the board
would proceed with the inquiry “without regard to the limitations of s 422 of the
Crimes Act.” The key passages in Martin AJ’s reasons are extracted earlier in this
judgment (at [79]). Critically, his Honour found that the Director’s submissions
amounted to a suggestion that the board should “go behind the order of Marshall J”
and determine for itself whether the conditions in s 422(1) had been satisfied.
351. Read in context and in their entirety, the reasons reveal that Martin AJ did not make
any decision of the sort contended by the Director. The basis upon which the
declaratory relief is sought is accordingly misconceived.
352. In any event, we are not satisfied that Martin AJ erred in any way, let alone
jurisdictionally, in the reasons he gave for rejecting the Director’s submission.
353. The board’s power or jurisdiction is to inquire into and report upon the “matter” stated
in the order made by the Supreme Court under s 424(1). That is clear from the terms
of s 422(2) and 427(2). It is for the Supreme Court, not the board, to determine
whether the conditions in s 422(1) are satisfied. While it may be necessary for the
board to construe the terms of the relevant order, it does not follow that the board is
empowered to decide whether the orders were validly made. Nor is the board
empowered, let alone required, to refrain from inquiring into any of the matters
referred to in the order on the basis that they are not within the terms of s 422(1) and
are therefore invalid. That was the effect of the Director’s submission. Martin AJ was
correct to reject it.
354. Even if we were of the opinion that there was some error in Martin AJ’s reasons, we
would not in any event grant the relief sought. Although Martin AJ called his reasons
a “ruling”, in truth they were no more than reasons for rejecting the Director’s
submissions. Reasons alone are not open to challenge. In any event, the declaration
104
he applied for is in vague and abstract terms and is essentially hypothetical in nature:
University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10.
What orders, if any, should be made? 355. We have found that the primary decision-maker’s decision is affected by reviewable
error. As we have already observed, however, it is another question whether the
plaintiffs should be afforded any relief. It is common ground that relief (whether
under the ADJR Act or at common law) is discretionary, even where the error goes to
jurisdiction.
356. So what considerations bear on the question of whether relief should be granted or
refused in the exercise of the Court’s discretion?
357. Here, there is no question about the plaintiffs exhausting their appeal rights as they
have none. Delay, however, though it may not preclude the bringing of the
application, remains relevant. So, too, do the reasons for, and consequences of, the
delay. Ultimately, the question is: what is just?
358. There is no need to repeat what has already been said. It is sufficient at this point to
make the following observations. Not only did the Director fail to seek judicial
review for a period of 14 months but he failed to seek independent legal advice. He
chose instead to try to persuade the board to limit the scope of the inquiry – a course
which was doomed to fail. Notwithstanding his explanation for the delay, it is
difficult to understand any of these acts or omissions. Duggan AJ had refused to do
as the Director asked as early as November 2012 and still he did nothing. The result
of the Director’s inaction and his election to pursue a hopeless administrative course
is that by the time the hearing in this Court had started, the inquiry was well under
way and a vast amount of money had been spent.
105
359. While Mr Barnes’s position is different from the Director’s, he also delayed in
seeking relief although he was apprised of the terms of the inquiry as early as
February 2013. The result of his delay is the same.
360. On 11 December 2013 the Director applied for an interlocutory injunction to restrain
the inquiry from hearing any more oral evidence until further order. That application
was refused, in part because at that stage the Director’s delay was largely
unexplained. When judgment was reserved on 21 February 2014, by which time
Mr White’s affidavit had been read, neither the Director nor Mr Barnes sought any
interlocutory relief. In the result, on the evidence before the Court, the inquiry is now
drawing to a close. Most, if not all, of the evidence has been taken. After that, all that
remains is for submissions to be put and for the board to deliberate and then report.
361. In the meantime, the Director and Mr Barnes have been compelled to produce
documents. Doubtless, former employees of the Director have given evidence. It is
likely, too, that Mr Barnes has already given evidence and been subjected to cross-
examination. These were the obligations these proceedings were presumably
designed to avoid. No doubt, some damage to Mr Barnes’s reputation has already
occurred. Even before Mr Barnes applied to join these proceedings, at least one
witness severely critical of him had given some evidence. None of this can be
undone. In these circumstances it may be doubted whether there is any real utility in
granting relief.
362. Moreover, the inquiry appears to have uncovered issues which cry out for resolution.
According to an affidavit from Mr Eastman’s solicitor, Helen Hayunga, affirmed on
19 February 2014, the contents of which are not in dispute, the inquiry has identified
“serious issues” which, we infer, have already been the subject of extensive evidence.
Those issues include:
106
(a) The expression of opinions by Mr Barnes at trial concerning the source of propellant particles being PMC ammunition without having conducted tests or having data to substantiate those opinions;
(b) Possible conflicts revealed in the notes/reports/evidence of Mr Barnes, file notes of the ACT DPP and a report of an overseas expert regarding the number of particles on slides, the description of relevant particles, the destruction of particles, the continuity of exhibits and the source of particles claimed to have been tested;
(c) The possibility that there is no reliable data for the opinion that there were PMC propellant particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Bradshaw (not the murder weapon) as the source of … the gunshot residue in Mr Eastman’s car;
(d) The possibility that there is only data for two “rogue” particles at the scene and to “rogue” particles in Mr Eastman’s car with the consequential inability to suggest any link to the crime scene or exclude a rifle bought by Mr Eastman from Mr Lenaghan as the source of the two “rogue” particles in Mr Eastman’s car;
(e) Tests conducted by Dr Wallace to show that non silenced weapons can be a source of “charred” particles;
(f) The “database” relied upon by Mr Barnes as part of his ability to exclude other ammunition types as a source of the gunshot residue was work conducted by another scientist, Mr Strobel, as part of his master’s course;
(g) Whether the expression of opinions by Mr Barnes at the trial … went too far and had the potential to mislead;
(h) The preparedness of Mr Barnes to express opinions at the inquest without having conducted tests or having data to substantiate those opinions;
(i) The covert taping of a telephone conversation between Mr Barnes and an AFP officer, in which Mr Barnes expressed himself in a manner that might indicate lack of independence;
(j) The Victorian police laying internal disciplinary charges against Mr Barnes and subsequently withdrawing those charges upon Mr Barnes’ resignation in 1993.
363. Ms Hayunga also referred to issues relating to the failure of the AFP and/or the
Director to disclose some of these matters. She said, too, that, in relation to
paragraph 13 of the terms of reference (the availability of a hypothesis consistent with
innocence), the board expects to receive evidence concerning “an important new line
of inquiry”, which she asserted was in the nature of fresh evidence.
107
364. To call a halt to the inquiry at this point would be unconscionable.
365. It is true that, if we were to make the orders the Director seeks, the Court would have
to consider Mr Eastman’s application for an inquiry according to law. It may be that
Mr Eastman could persuade the Court that all the preconditions in s 422(1) have been
met. But that course would result in further delay. In the event that the Court were to
order an inquiry which was more limited in its terms than the inquiry ordered by the
primary decision-maker, much of the cost incurred to date would have been wasted.
Even if it were to order an inquiry on substantially the same terms, there is no
guarantee that the staff of the current inquiry, including the board itself, or counsel for
Mr Eastman would be available for any future inquiry.
366. It is also true that, if this Court were to make the orders the Director seeks, it would be
open to the Executive to order an inquiry under Part 20 of the Crimes Act. It would,
of course, have to be satisfied that the preconditions in s 422(1) (apart from
paragraph (f)) have been made out. That may be easier to do now after all the board’s
investigations. Conceivably, any new board could also make use of the material
acquired to date and Martin AJ might be appointed once again. But the Executive is
not bound to order an inquiry and, despite its enthusiasm for the current inquiry, it
may be unwilling to assume the responsibility for establishing one of its own.
367. At this late stage, having regard to the inordinate delay and the considerable work the
board of inquiry has carried out, the personal and financial investment in that work
and the matters the board has uncovered, we are of the opinion that it is in the
interests of justice that the inquiry take its course and the board complete its
investigation.
368. It follows that we would refuse relief in the exercise of our discretion.
108
Costs 369. We agreed to reserve the question of costs. Our preliminary views, however, are as
follows. The Director should pay Mr Eastman’s costs, as he has agreed to do, and
also the costs of the ACT. The Attorney should pay his own costs. Mr Barnes should
pay the costs of his joinder application. Otherwise there should be no order as to
costs. If the parties are content with orders to this effect, then we will make them. If
not, we will order that within seven (7) days each party file submissions, in support of
the orders he or it seeks and each other party will have a right to respond within the
same period of time. We propose deciding the question on the papers.
I certify that the preceding three hundred and sixty-nine (369) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. Associate: Date:
Counsel for the Plaintiff: Mr T Game SC, Mr S Free and Ms J Roy
Solicitor for the Plaintiff: Office of the Director of Public Prosecutions,
ACT
Counsel for the First Defendant: The First Defendant filed a submitting notice.
Counsel for the Second Defendant: The Second Defendant filed a submitting notice.
Counsel for the Third Defendant: Mr P Hanks QC and Ms K Katavic
Solicitor for the Third Defendant: Legal Aid ACT
Counsel for the Fourth Defendant: Mr P Garrisson SC and Mr N Hancock
Solicitor for the Fourth Defendant: ACT Government Solicitor
Counsel for the Intervener: Mr P Garrisson SC and Mr N Hancock
Solicitor for the Intervener: ACT Government Solicitor
109
Counsel for the Applicant (Robert Barnes): Dr I Freckelton SC and Mr A Imrie
Solicitor for the Applicant (Robert Barnes): Russell Kennedy
Date of hearing: 9–11 December 2013, 20–1 February 2014
Date of judgment: 22 May 2014