2014-05-22 Director of Public Prosecutions for the Australian …€¦ · · 2016-08-30Rondel v...

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

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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

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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

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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.

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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

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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

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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

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“[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.

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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

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(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)).

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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).

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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;

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(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);

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(2) making an error of law in his interpretation of s 422(1) by misconstruing the

preconditions in the subsection.


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.


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.


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);

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(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);


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.


described in s 5(1)(e) and (2)(g);

(7) making the decision although the preconditions in s 422(1) were not satisfied.


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.


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);

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(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?

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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

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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.

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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.)

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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

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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

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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

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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

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(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

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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.

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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

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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

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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;

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(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

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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

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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

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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.

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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.

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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

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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

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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

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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.

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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

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(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

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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.

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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

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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

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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.

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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

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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,

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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):

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(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

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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)

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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.

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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].

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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

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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?

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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

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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

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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

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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.

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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

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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.

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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:

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(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.

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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

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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

ANNEXURE

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