Australian Capital Territory v Cavanagh [2004] ACTSC 107

3. The grounds relied on as the basis for the review of the Magistrate's decision are set in the Further Amended Application for Review. The first ground is that the making of the decision refusing leave was an improper exercise of the power conferred by s 475 of the Crimes Act in three respects. The first respect is that the refusal was on exercise of power that was so unreasonable that no reasonable person could have so exercised the power. Next, it is said that the Magistrate failed to take a relevant consideration into account in the exercise of power namely, the interests of the Crown in the subject matter of the Inquiry. Further, it is said that the Magistrate took an irrelevant consideration into account in the exercise of the power to refuse leave, namely, that the Executive of the ACT could reasonably be perceived to be biased in what it decided to do pursuant to s 475(4) by the participation in the Inquiry by the Crown.

4. The second ground for the application is that two errors of law were made by the Magistrate. The first is that the Magistrate identified the Crown in the right of the ACT with the Executive referred to in s 475(4) when in law they are distinct. The second is that the Magistrate erred in finding that the disposal of the matter by the Executive under s 475(4) is subject to the rules of procedural fairness, specifically, the apprehended bias rule, when performing its function under s 475(4).

5. On the hearing of the present application, Mr Buchanan SC appeared for the Crown in the right of the ACT. Mr Eastman appeared in person. Mr Harris SC who is Counsel Assisting the Inquiry appeared with Mr Sharwood, and indicated that the Magistrate submitted to any order of the Court save as to costs. Mr Harris stated that he would make submissions if invited to do so by way of assistance to the Court. I invited him to do so.

6. Section 475 of the Crimes Act reads as follows:

"(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to her or his guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, some person on her or his behalf, representing such doubt or question, or a Judge of the Supreme Court of her or his own motion, may direct any Magistrate to, and such Magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.

(2) The attendance of every person so summoned may be enforced, and her or his examination compelled, and any false statement wilfully made by her or him shall be punishable in like manner as if she or he had been summoned by, or by duly sworn and examined before, the same Magistrate, in a case lawfully pending before her or him.

(3) Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the Magistrate shall allow such person to be present, and to examine any witness produced before such Magistrate.

(4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the Magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the Inquiry was directed by her or him, or to the Judge directing the inquiry, and the matter shall thereafter be disposed of, as to the Executive, on the report of such Judge, or otherwise, shall appear to be just." (Emphasis added)

7. This section was repealed with effect on 27 September 2001 when a different regime was established for dealing with reviews of convictions. The new provisions do not require consideration on this application because the terms of s 475 in the form as set out above apply to the present circumstances.

8. The section has a long history dating back to 1871 in New South Wales. The detailed background and legislative history of the provision are traced in the reasons for judgment of Heydon J (with whom Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ agreed) in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [37]- [50] and [65]-[75]. It is therefore not necessary for me to repeat that background. At [103] his Honour said:

"The function of s 475 was to give the executive a means of conducting an effective inquiry into particular factual questions. The executive or the Supreme Court judge was to act under s 475 when a relevant doubt or question arose. The result of the inquiry might have revealed that there is more than a doubt or question. The doubt might have swelled into certainty that something had gone wrong. The question might have been answered in positive terms favourable to the petitioner. Alternatively, the result of the inquiry might not only have answered the question adversely to the petitioner, thereby removing any doubt, but also have shown that the conviction was unquestionably well-based, and that public confidence in its soundness could legitimately intensify beyond the point which had been reached when the inquiry was directed. Section 475 thus furnished `the Executive with a means of putting an end to any public agitation.' If a doubt or question about fitness to pleas could have triggered a s 475 inquiry, the inquiry could have clarified whether erratic and unusual behaviour by an accused person was a sign of unfitness to plead or was instead merely feigned, as part of an attempt to disrupt and frustrate the trial."

9. In Eastman v R (2000) 214 CLR 1 at [23] Gleeson CJ accepted that the test of fitness to plead (as it would apply to Mr Eastman's case) was as follows:

(a) understanding what it is that he had been charged with;

(b) pleading to the charge and exercising his right of challenge;

(c) understanding that the proceeding before the Supreme Court would be an inquiry as to whether or not he did what he was charged with;

(d) following, in general terms, the course of the proceeding before the court;

(e) understanding the substantial effect of any evidence given against him;

(f) making a defence to, or answering, the charge;

(h) giving instructions to his legal representative (if any); and

(i) making his version of the facts known to the court and to his legal representative (if any)."

10. In order to understand the context in which the present application came about it is useful to refer to some relevant events. On 31 May 2001 Mr Eastman made an application by letter for an inquiry under s 475 into his conviction for the murder of Colin Winchester. The application was made to Miles CJ who at that time was the Chief Justice of the ACT. On 7 August 2001 Miles CJ directed the Chief Magistrate of the ACT, or a Magistrate nominated by him, to summon and examine on oath persons likely to give material information on the matter of Mr Eastman's fitness to plead. The terms of the appointment are set out in a letter of that date from the Chief Justice which reads:

Application by David Harold Eastman for Inquiry

under Section 475 of the Crimes Act 1900

David Harold Eastman has made application for an Inquiry under s 475 of the Crimes Act 1900 into his conviction for murder on 3 November 1995.

I am of the view that a question or doubt arises as to his guilt. The question is whether the question of fitness to plead arose at that trial.

I therefore direct you, or a Magistrate nominated by you, to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial.

I request that you, or the Magistrate nominated, consult me as to the identity of persons likely to give material information and generally as to the procedure to be followed in the Inquiry.

I have requested that the Attorney-General to provide independent counsel to be instructed by the Registrar of the Supreme Court or of the Magistrates Court for the purpose of assisting the Inquiry. This is a matter which I suggest be the subject of consultation between yourself and myself at a later stage."

11. Mr Pike SM, who was the nominated Magistrate, conducted directions hearings in preparation for the Inquiry and the first of these was held on 30 November 2001. Before the hearing got under way various proceedings were commenced in the Supreme Court.

12. As recounted by the Magistrate, the last of the proceedings was that commenced by Mr Eastman, and these were dismissed by Gray J, sitting as a Judge of the ACT Supreme Court, on 25 May 2004. However, by that time, the appointment of Mr Pike SM had expired, and it was necessary for the Chief Magistrate to nominate another magistrate to undertake the Inquiry. On 8 September 2004, the Magistrate, who normally sits in the Northern Territory, was appointed as a Special Magistrate in the ACT. On 9 September 2004, he assumed office. On 16 September 2004 the Chief Magistrate of the ACT nominated the Magistrate to examine those persons likely to give material information on the matters specified by the Chief Justice.

13. In his opening remarks, the Magistrate recorded his understanding that it was the intention of Justice Miles to invite submissions from those who had an interest in the s 475(4) report to be prepared by Justice Miles at a time prior to its preparation. The hearing before me proceeded on the basis that such a procedure would be followed.

14. The Magistrate noted that s 475 did not specify the manner in which he was to undertake the task of examining persons likely to be giving information and he said that the procedure to be adopted was within his discretion subject to the requirements of procedural fairness. He accepted that he must act judicially in collecting the material to be sent to the judge and he noted that the process was administrative and inquisitorial and not adversarial as in a criminal trial. He observed that it may be appropriate for him during the course of the Inquiry to exercise his discretion to conduct some parts of the examination in private in order to respect confidential material. This illustrates the fluid nature of procedural fine tuning, which takes place during an inquiry. He expressed his proposal to commence examination of the witnesses in public. Mr Walmsley SC appeared for Mr Eastman. He was granted leave. Leave was also granted to Mr Harrison SC with Mr Sharwood as Counsel Assisting.

15. The application made by Mr Buchanan SC was for leave to appear for the Crown in the right of the ACT. This was opposed by both Mr Harris, and by Mr Walmsley on behalf of Mr Eastman. The Magistrate refused the Crown application and relied on the submissions of Mr Harris. These submissions are set out in the transcript. In substance the basis for the opposition is that there is such an identity of interest, function and character as between the Crown and the Executive which makes the ultimate decision under s 475(4) that, to quote from the submission of Mr Harris and his subsequent exchange with the Magistrate:

"... there is no place for any emanation of the ultimate decision maker [the Executive] to participate before your Worship as an interested protagonist. If the decision maker has been allowed to participate as an interested protagonist in the process that your Worship is undertaking, then the procedural requirement of an unbiased decision maker is poisoned at the outset.

And the reason why I raise it and the reason why I oppose my friend's application is that it seems to me that if I am right, the problem cannot later be remedied.

Once my friend embarks on the process, isn't representing the Executive as a interested protagonist, he can no longer later ---

HIS WORSHIP: The Executive will make the final decision.

So whilst I would have been comforted to have the safety net that he would provide, my fear is with this other great pillar of procedural fairness, mainly the right to an unbiased decision maker.

HIS WORSHIP: I've let people appear in these situations at Coronial Inquiries, by saying well I'm not going to refuse extra help from a qualified, competent and Senior Counsel. But that's all it was. But you've got this extra concern now.

MR HARRIS: Yes. Well section 475 if [sic] in my submission a fragile procedure. I might mention that it is undoubtedly so that the rules of procedural fairness apply to decisions being made by the Executive. I think the most well known authority for that is FAI Insurance v Winneke reported at 151 CLR at page 342.

So that is the concern that I raise. If it is right, it's [sic] consequences cannot be remedied. It's worth your Worship perhaps just diverting for a moment to look at the Australian Capital Territory Self-Government Act. In section 3, the Attorney-General of the Territory is defined to mean the Minister who has the responsibility for the administration of justice in the Territory. If it were the Attorney-General of the Territory who was seeking leave to appear, then perhaps the problem that I'm currently agitating doesn't arise. Likewise, if it was the Director of Public Prosecutions who was seeking leave to appear, again, within limits and bearing in mind what their Honours, Whitlam and Gyles JJ said in DPP v Eastman_, provided the appearances were constrained to issues with which the DPP is legitimately interested, the sorts of concerns that I have been raising would not arise. But it does seem to me that if, in effect, the appearance is for the ultimate decision maker, well then there is a concern."_

"I've already indicated that Miles J has indicated that he will accept and hear submissions on the evidence before he prepares a report. I've already also indicated that I have an open mind at this stage as to whether I would allow someone appearing for the DPP to be present at the Bar Table during this Inquiry.

I'm attracted to the sentiments of Whitlam and Gyles JJ in paragraph 32 of the case for the DPP v Eastman [2002] FCAFC 209; (2002) 192 ALR 353, which would, in my view, prima facie, allow a limited representation for the DPP. It may be that the Director of Public Prosecutions Act 1990 of the ACT does not give explicit power to appear in such Inquiries. However, that may not concern me one way of the other.

As I say, I'm attracted to that particular paragraph I've already referred to. And indeed I'm aware that the DPP's already been provided with all witness statements in that regard. I wouldn't like to be seen that I'm inviting representation but as I say I've got an open mind about it at this stage.

However in respect of the specific application made by Mr Buchanan, I thank him for his erudite presentation but at the present time, as I say, I reject his application and I rely on the arguments put by counsel assisting." (Emphasis added)

17. At the outset of this application a question arises as a consequence of submissions by Mr Eastman as to whether there is any "decision" which can be reviewed. Mr Eastman submitted that the application is incompetent because there is no reviewable "decision". The Further Amended Application for Review filed in Court on 13 October 2004 by the Crown is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act"). The decision challenged is the Magistrate's order "refusing to grant leave to the Crown in right of the Australian Capital Territory to appear in the Inquiry ...". The relief sought is an order pursuant to s 17(1)(a) of the ADJR Act which only relates to an order for review of a decision.

18. Section 3(1) of the ADJR Act relevantly defines the expression "decision to which this Act applies" to mean a decision of an administrative character made, whether in the exercise of a discretion, or not, under an enactment.

19. Section 3(2) provides that a reference to the "making of a decision" includes a reference to a number of acts which include, for example, making an order, making a determination, and failing to make a decision.

20. Section 3(3) provides that where provision is made for the making of a report before a decision is made in the exercise of a power under the act, the making of such a report is to be taken to be the making of a decision. Accordingly, the report of the judge under s 375(4) will be a decision.

21. Section 3(4)(c) provides that a reference to conduct engaged in, for the purpose of making a decision, includes a reference to the doing of any act or thing preparatory to the making of the decision including the taking of evidence or the holding of an inquiry or investigation.

22. Section 5 of the ADJR Act which is the basis of the present application before me provides that a person aggrieved by a decision may apply to the Supreme Court for an Order of Review in respect of the decision on a number of specified grounds.

23. The principles to apply when considering whether there is a reviewable decision are not in dispute and were considered by Mason CJ, in the context of the Commonwealth Administrative Decisions Judicial Review Act (1977) which is for present purposes relevantly identical. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 336-337, Mason CJ discussed these principles in the following terms:

"First, the reference in the definition in s 3(1) to `a decision of an administrative character made ... under an enactment' indicates that a reviewable decision is a decision which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry, or dispute or, in the words of Deane J `a determination effectively resolving an actual substantive issue'. Thirdly, s 3(3) is extending the concept of a `decision' to include `the making of a report or recommendation before a decision is made in the exercise of a power' to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that `decision' comprehend every decision or every substantive decision made in the course of reaching a conclusive determination.

To interpret `decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision making and set at risk the efficiency of the administrative process."

... A reviewable `decision' is one for which provision is made by or under statute. That will generally, but not always, entail a decision which is final or operative and determinative at least in a practical sense, of the issue of facts falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the Statute provided for the making of a finding or ruling on the point so that the decision although an intermediate decision might accurately be described as a decision under an enactment". (Emphasis added)

24. In the present case the refusal of the Crown's application for leave to appear and participate at the outset of the Inquiry is not a "decision" under the ADJR Act. I reach this conclusion taking into account a number of considerations.

25. The first matter to note is the broad language of s 475 in relation to the role of the Magistrate and lack of any right or entitlement to appear. The terms of s 475(1) do not require the Magistrate to grant leave to any person or body to appear. Persons who were witnesses at the trial and whose character is affected have a right to appear as provided for in s 475(3). The discretion conferred is given to the Magistrate in the widest language, such that the Magistrate is to carry out the collection of information in such a way that the Magistrate in his discretion considers appropriate. The operative discretion to grant permission to appear is indicated by the reference to "may" in relation to the summoning and examining of witnesses. The word "may" imports both the discretion to summons persons, and the way in which, and by whom, they are to be examined. No prescription is made as to the procedure in relation the exercise of this function of collecting material information for transmission to the Judge. It is for the Magistrate and not this Court, to decide the manner in which the Inquiry is most expeditiously and efficiently to be carried out so that the material information is best collected. None of the legislation to which I was referred gives any right of appearance to the Crown in the right of the ACT. It would have been simple, if the legislature had so intended, to confer an entitlement on persons or bodies to appear at such inquiry to have expressly referred to such parties by description. It has chosen to do so in s 475(3) but not otherwise.

26. Counsel for the Crown submits that it was grossly unreasonable in the Wednesbury sense, in the circumstances of this case, for the Magistrate to refuse leave to the Crown. He points to the Crown's interest in upholding the conviction and its familiarity with the history of the prosecution, and the fact that the prosecution was brought on behalf of the Crown, which at the least can play a useful role as contradictor. I entertain some doubt as to whether it is the function of the Crown to uphold the conviction as suggested by Mr Buchanan: cf the remarks of Whitlam and Gyles JJ in Director of Public Prosecutions v Eastman [2002] FCAFC 209; (2002) 192 ALR 353 at [30]. This submission in substance is an assertion of an "entitlement" to appear which is said to have been adversely determined by the ruling of the Magistrate. This is the way Counsel for the Crown presents its case on the question whether there is a "decision". In my view, it cannot be said as a matter of "entitlement" that the refusal of leave to the Crown must be categorised as so unreasonable that no reasonable Magistrate could reach such a conclusion. There is simply no "entitlement" conferred on the Crown to appear at the Inquiry according to the discretionary terms of the section. There is no specific statutory provision for any decision to be made as to leave to appear on the part of the Crown, the Director of Public Prosecutions ("DPP") or the Attorney-General. Nor can one be implied from the language of this section.

27. The Crown submitted that because Mr Eastman was allowed to be represented at the Inquiry as a participant therefore it was reasonable for the Crown, as prosecutor in the trial, to be present and participate in the Inquiry. The short answer to this is that Mr Eastman's mental state is the subject of the Inquiry and also he has a right under s 475(3).

28. In deciding whether to grant leave to appear there are many considerations that can properly be weighed in the balance such as the desirability of a timely conclusion, the avoidance of unnecessary duplication, repetition and expense are matters which immediately come to mind. The procedure is inquisitorial in nature and the observations of Mason CJ in Bond that to depart from the quality of finality could lead to undesirable fragmentation of the process of administrative decision making, have particular force given the history of the Inquiry in this case. In another context the Court's avoidance of fragmentation of the criminal process has been referred to as a "powerful consideration": see Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339. This is not a criminal or adversarial process in that sense but the principle against fragmentation has cogency in this matter. If applications are made to appear before or during the Inquiry and a challenge can be made in the event of refusal of each application then the Inquiry may be disrupted and the process fragmented to such an extent as to detract substantially from an effective and just implementation.

29. In relation to the question of finality, the ruling by the Magistrate does not preclude the Crown making an application, at a later stage, in the course of the proceeding, having regard to the circumstances then existing, for leave to intervene in the proceedings or to examine particular witnesses. Leave to appear may be revoked, made subject to conditions, or granted during the course of the Inquiry depending on developments in the Inquiry. Indeed, in this case the Magistrate specifically rules in terms that "at the present time I refuse his application." (Emphasis added). This appears after the Magistrate refers to the fact that the Judge directing the Inquiry has indicated that submissions can be made to the Judge before his report is made by any interested body or person. This would include the Crown if it can establish that it has a sufficient interest in making a submission. Therefore, the Crown would not be precluded from a hearing in the form of submission.

30. The Magistrate adverted to the consideration of avoiding possible duplication of evidence, given the role of counsel assisting the Inquiry whose role is not only to adduce and present material information but to test it and to ensure its utility to the Inquiry. The role of Counsel Assisting includes, according to L A Hallett, Royal commissions and boards of inquiry, Law Book Co., 1982 edn at 219-220, the cross-examination of witnesses where considered appropriate. It cannot be said, in my view, as a general matter of law and given the role of Counsel Assisting, that the admission of the Crown as a participant to this Inquiry is so clearly essential to the proper conduct of the Inquiry that no reasonable conclusion could be reached to refuse leave to the Crown at this point in time. It cannot be said that the ruling is a determination of any right or entitlement of the Crown in any final sense. The Crown simply has no right to appear.

31. A discretionary ruling or an application for leave to appear is, in my view, procedural in nature. It does not resolve any substantive rights. Nor is it final in the sense referred to by Mason CJ. For these reasons I conclude that the challenged ruling is not a reviewable decision. It lacks those essential criteria specified in Bond and accordingly this application should be dismissed as incompetent.

32 Since there is no reviewable decision it is not necessary for me to rule on the detailed submissions made in relation to alleged errors in the Magistrate's ruling. However, I wish to record that I see force in the submission made for the Crown that the concern expressed by the Magistrate in relation to apprehended bias on the part of the Executive in performing its function as a ground for refusal of leave is not well-founded. In considering this matter, the breadth of the terms in which the power is invested under s 475(4) in the Executive, together with the composition and function of the Executive and its position in the decision-making process, weigh strongly against a finding that principles of procedural fairness apply to the Executive in the performance of its function under s 475(4) to dispose of the matter as seems just to the Executive. The present case is materially different from that in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 referred to by the Magistrate, because in that case there was a pre-existing licence; there were specific matters for consideration and there was held to be a legitimate expectation of renewal giving rise to the application of the audi alteram partem principle. These features are not present in the present case. Moreover, the extensive power conferred by s 475(4) confers the broadest discretion as to possible remedies: see for example, those referred to by Madgwick J in DPP v Eastman [2002] FCAFC 209; (2002) 192 ALR 353 at [109] and discussed by Heydon J on appeal in Eastman v Director of Public Prosecutions (ACT) at [94]-[104]. The mandate given to the Executive in the present case to dispose of the matter as seems just to it after the Judge's report, has been considered is sufficiently extensive to include the possibility of a legislative remedy. A power to make a decision to initiate such a legislative remedy highlights the difference of the discretion in this case compared with the discretion to renew an insurance licence in the Winneke case.

33. There is also, in my view, force in the submission by the Crown that an informed observer, aware of the role proposed to be undertaken by the Crown, and with an appreciation of the constraints applicable to the performance of that role in the Inquiry by the Crown, on accepted principles would not reasonably or readily be likely to apprehend bias on the part of the Executive as a consequence of the Crown participating in the Inquiry at the evidence collection stage. Under the regime comprised in s 475(4), the information collected will be considered and reported upon by an independent judge who has made provision for submissions by interested parties prior to the making of his report. I do not, however, accept the submission advanced by the Crown that an informed member of the public must be taken to be aware of the distinctions between the Crown and its emanations in the form of the Executive, the Attorney-General and possibly the DPP under the Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 7, 36, 37 and Schedule 4, and other legislation.

34. As indicated earlier in these reasons the discretion conferred on the Magistrate in relation to the admission of parties or participants, and the conditions on which any such admission is granted, is unconstrained by the terms of s 475 of the Crimes Act. It is apparent from the transcript of the hearing in this case that the Magistrate was concerned as to possible overlap of function between Counsel Assisting and the Crown. He referred to the desirability, given the prolonged history of this Inquiry, for a timely conclusion to this Inquiry in the interests of justice. These are central matters for consideration on an application for leave to appear, in addition to an assessment as to what relevant further assistance might flow from the admission of another participant, such as the Crown, in collecting material information for forwarding to the Judge, beyond what he will obtain from Mr Eastman, Counsel Assisting, and any applicants who exercise their right to participate under s 475(3).

35 The transcript of the hearing before the Magistrate does not in my view indicate that the Magistrate was unaware of the extent of the interest, position and role which the Crown claimed it would perform if admitted as a participant as suggested by Mr Buchanan. Indeed, at one point there is a reference to the Crown as a "protagonist".

36 For the above reasons I dismiss the application with costs.

I certify that the preceding thirty-six (36) numbered

paragraphs are a true copy of the Reasons for Judgment

Solicitor for the Applicant: ACT Government Solicitor

Counsel for the First Respondent: J Harris SC and W Sharwood