Director of Public Prosecutions (ACT) v Eastman

Background 3 David Harold Eastman ("Eastman") was charged with the murder of Assistant Commissioner Winchester of the Australian Federal Police on 10 January 1989. The trial in the Supreme Court of the Australian Capital Territory, which was presided over by Carruthers A-J, commenced on 16 May 1995 and lasted for five and a half months, concluding with his conviction on 3 November 1995. During the trial Eastman exhibited erratic and unusual behaviour, and was unrepresented from time to time. None of Eastman, his various legal representatives, or prosecuting counsel raised any question during the trial as to his fitness to plead. The trial judge raised no such question, and, indeed, in the course of his remarks on sentence, described the applicant's conduct as an attempt "to avoid the consequences of the damning nature of the Crown evidence by adopting a process of manipulating the trial process and attempting to frustrate its progression in any conventional manner". 4 On appeal to this Court, numerous arguments were raised on behalf of Eastman but no issue was raised as to his fitness to plead. Indeed, counsel on his behalf expressly rejected any suggestion of mental illness which might bear on that question. The appeal was rejected: Eastman v The Queen (1997) 76 FCR 9. Eastman's application for special leave to appeal to the High Court raised for the first time the question of his fitness to plead at the time of his trial. He sought leave to present evidence to the High Court on that issue. It was held that the High Court could not receive that further evidence. It was then argued that there was material before this Court such that it should have raised that issue of its own initiative. This argument was rejected. Special leave to appeal was granted, but the appeal was dismissed on 25 May 2000: Eastman v The Queen (2000) 203 CLR 1. The views expressed by certain of the Justices in that decision loomed large in the argument before us. 5 A document prepared by Eastman dated 9 June 2000, called "Petition", and headed "Application for a Judicial Inquiry under Section 475 of the ACT Crimes Act 1900" was provided to the Supreme Court. It included: "A 4-3 majority of the High Court (Gaudron, Kirby, Hayne and Callinan) considered that the negative outcome of my appeal was 'CLEARLY UNSATISFACTORY' (see pages 26, 100, 115 and 147), and specific reference was made a Judicial Inquiry as one of the means of repairing this defect (see page 100)." (Emphasis in original.) and claimed that a judicial inquiry be set up. 6 The Registrar of the Supreme Court conveyed to Eastman, on behalf of the Chief Justice, the following: "1. The Chief Justice has made an administrative decision not to direct an inquiry under s 475. 2. Your application relies upon the expression of opinion by three Judges of the High Court (and, possibly, a fourth, Justice Kirby) that the failure of your appeal was 'clearly unsatisfactory'. The Chief Justice is not convinced that your application raises a doubt or question as to your guilt, or any relevant mitigating circumstances, or any portion of the evidence in your case, in respect of which it is appropriate to direct an inquiry. 3. However, assuming that such doubt or question arises, you have the alternative of presenting your petition to the Executive. An inquiry under s 475 is conducted more appropriately at the direction of the Executive, which has the responsibility of the ultimate disposal of the matter." 7 Eastman then directed a further communication to the Chief Justice on the topic of an inquiry pursuant to s 475, referring to what he called "further compelling evidence" under the following headings: (1) "Psychiatric report of Dr Hugh Jolly dated 30 January 1998", (2) "Evidence of former Winchester murder inquiry detective, Cliff Forster", (3) "Evidence that organised crime committed the murder", and (4) "Forensic evidence of Robert Barnes is 'unsafe'". 8 The following appeared under the heading "Psychiatric Report of Dr Hugh Jolly dated 30-1-98": "I attach a copy of this report, and I draw your attention especially to page 6, which states that I was unfit to plead during part of the trial. This opinion is supported by psychiatric reports of Dr Alan White and Dr Bruce Westmore dated April and October 1998 respectively. The former is contained in the High Court appeal books. The latter was commissioned by the DPP to contradict Dr White, but ended up substantially agreeing with him. I regret, due to lack of photocopying, that I cannot send you copies of these reports at this stage. The DPP has them. In addition, during my trial, the Prosecution had 13 psychiatric reports from Dr Rod Milton dated 1989-92 which raised at the very least a question as to my fitness to plead, pursuant to Sect 428E of the Crimes Act. The Prosecution failed to raise this issue with the trial judge, despite having a clear-cut duty to do so." (Emphasis in original.) 9 The response of the Chief Justice was as follows: "1. With regard to the matters referred to under the heading 'Psychiatric Report of Dr Hugh Jolly dated 30.1.98', I have not yet been able to decide whether they raise a doubt or question under s 475, or whether, if they do, the doubt or question is of sufficient substance to justify directing an inquiry. 2. In order to further consider the application I propose to instruct the Registrar to brief counsel to assist me at a hearing to take place in the Law Courts Building at 9.30 am on Thursday 12 July 2001. In the meantime I will receive and consider any further written submission which the applicant wishes to make. I will also consider, at the hearing, any application by a legal practitioner to appear and make submissions on behalf of the applicant or on behalf of the Attorney-General or on behalf of the Director of Public Prosecutions. The hearing may be adjourned from time to time. 2.[sic] I have decided to decline to direct an inquiry into the matters referred to under the headings 'Evidence of former Winchester murder inquiry detective, Cliff Forster', 'Evidence that organised crime committed the murder' and 'Forensic evidence of Robert Barnes is unsafe'. 3.[sic] The grounds on which I have made the decision are as follows: The matters referred to add nothing of substance to the evidence in the trial as it was summarised in the judgment of the Full Court of the Federal Court in Eastman v The Queen." 10 The hearing envisaged in that response took place on 12 July 2001, when counsel assisting appeared, together with counsel for the Attorney-General, a solicitor for Eastman and counsel for the Director of Public Prosecutions. Submissions had been made on behalf of all those parties. Eastman favoured an inquiry. The Attorney-General and the Director of Public Prosecutions opposed an inquiry, each arguing, inter alia, that fitness to plead did not raise a doubt or question as to guilt within the meaning of the section. Evidence was received by the Chief Justice. 11 On 7 August 2001 the Chief Justice made what were described as "Further Remarks" which included the following: "6. I have considered the submissions and the evidentiary material before me. The decision whether or not to direct an Inquiry under s 475 is an administrative one and not a judicial one. However, the direction may be lawfully given only in the circumstances provided for in the section. The material which may raise the sort of question or doubt contemplated by s 475 does not, in my view, go to the issue of whether David Harold Eastman murdered Colin Winchester on 10 January 1989. In that sense the material relevant to the question of fitness to plead is not relevant to guilt. 7. However in the administration of criminal justice, and in the criminal law, the term 'guilt' is often used not to refer to objective guilt but to a finding of guilt. If a liberal approach is taken to s 475, then it is not difficult to construe the section to cover questions and doubts as to a finding of guilt. If a person has been found guilty when an issue as to that person's fitness to plead has arisen at the trial but has not been determined according to law, then it follows that a question arises as to the finding of guilt. On the material before me the present application raises the question whether that issue arose at the trial of David Harold Eastman. 8. It is less clear whether an undetermined issue of fitness to plead gives rise to any mitigating circumstances. In my view, the sorts of mitigating circumstances contemplated by s 475 are those which are relevant to the sentence passed in consequence of the conviction. Circumstances suggesting unfitness to plead are not relevant to the sentence, except in so far as they may also go to suggest that the person was suffering from some mental handicap at the time of the offence which reduces his/her moral responsibility. It may be appropriate that they be taken into account also for the purpose of considering the person's ability to take part in the sentencing process post-trial. However, it is not necessary at this stage to consider this aspect further, since as I have already indicated I am satisfied that the material before me raises the issue of whether the question of the fitness of David Harold Eastman to plead arose at his trial. Consequently it raises also a doubt or question as to his guilt. 9. The next matter for consideration is whether I make an administrative decision as to whether there should be a direction that an Inquiry take place. The submission of David Harold Eastman argues that 'the psychiatric reports of Drs Jolly, White and Westmore provide prima facie evidence that he was, at times during the inquest and trial, unfit to plead, that this issue was never addressed in a substantive way during the trial or appeal process, that he was denied both a fair committal hearing (or equivalent) and a fair trial and that the matter is serious enough to warrant an inquiry under s 475'. 10. The strength of any doubt hanging over the conviction must be one factor. The cases refer to a feeling of 'unease' or a 'sense of disquiet' as being sufficient to justify an Inquiry. Another factor, in my view, is the likely outcome of any positive indication flowing from the Inquiry that a question as to unfitness to plead did in fact arise at the trial. The trial is over. At this time the Mental Health Tribunal clearly has no power to determine the question of fitness to plead even if it did arise at or during the trial and there is no power in the Court to order David Harold Eastman to submit to its jurisdiction. 11. As I have indicated the issue which brings the case within s 475 is not whether David Harold Eastman was in fact fit to plead but whether during his trial the question of fitness to plead arose. Should an Inquiry under s 475 attempt for itself look for an answer to the question whether David Harold Eastman was in fact unfit to plead? If it did, what would be the consequences of a positive answer that David Harold Eastman was in fact unfit to plead? It must be remembered that the Inquiry under s 475 results in a report to the Executive and nothing more. The Judge making the report has no power to set aside the conviction. The Executive would have no power to act on any recommendation that the conviction be set aside. The Minister would have no power to refer the case for determination as in an appeal, as may be done under the present Crimes Act 1900 (NSW) and as used to be done under the Criminal Appeal Act 1912 (NSW). There is however the Executive prerogative of mercy. There would also appear to be the unexplored scope of s 474 of the Crimes Act. 12. Ultimately I do not consider it appropriate to consider further the effect of the outcome of any Inquiry. It is enough to say that an Inquiry would not be necessarily futile and that there is a prospect that it might on the one hand go to expose a serious injustice or on the other it might go to clear any doubt and resolve any question as to David Harold Eastman's guilt as contemplated by s 475. 13. I therefore propose to direct the Chief Magistrate, or a Magistrate nominated by him, 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 for the murder of Colin Winchester. I propose also to direct the Magistrate concerned to 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 request 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." 12 On the same day the Chief Justice wrote to the Chief Magistrate of the Australian Capital Territory in the following terms: "Dear Mr Cahill 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 his 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 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. Yours sincerely, [Sgd] Jeffrey Miles CHIEF JUSTICE" 13 Thereafter the Chief Magistrate nominated Mr Ian Pike ("the Magistrate") to act as the magistrate pursuant to s 475. The Magistrate took various steps preparatory to receiving evidence.

Proceedings in the Supreme Court 14 On 20 March 2002 the Director of Public Prosecutions (ACT) ("the Director") commenced two proceedings in the Supreme Court of the Australian Capital Territory. The first named the Chief Justice as the first defendant, Eastman as the second defendant and the Magistrate as the third defendant. The relief sought was: "(a) A declaration that the inquiry, directed on 7 August 2001 to be conducted under s 475 Crimes Act 1900 into the matter of the fitness to plead of the First Defendant [sic] at the whole or any part of his trial for the murder of Colin Winchester, and proposed to be conducted by the Second Defendant [sic], was not authorised by the enactment under which it was purported to be made; (b) An order restraining the Second Defendant [sic] from conducting the inquiry, directed on 7 August 2001 to be conducted under s 475 Crimes Act 1900 into the matter of the fitness to plead of the First Defendant [sic] at the whole or any part of his trial for the murder of Colin Winchester, and proposed to be conducted by him." 15 The second proceeding was an application for an order of review, with the Director as the applicant and the same persons respondents as were defendants to the first action. The relief claimed was: "1. An order pursuant to Sub-paragraph 17(1)(a) of the Administrative Decisions (Judicial Review) Act 1989, quashing or setting aside the decision of the First Respondent to direct a Magistrate to conduct the inquiry." 16 The Director claimed to be aggrieved because: "1. The Applicant instituted and conducted the prosecution of the Second Respondent on indictment for the said offence; 2. The inquiry directed by the First Respondent calls into question, amongst other things, the conduct of the said prosecution by the Applicant; 3. Depositions taken in the inquiry may call into question the conduct of the prosecution of the Second Respondent; 4. Any report made by the First Respondent under Sub-section 475(4) Crimes Act 1900 may call into question the conduct of the prosecution of the Second Respondent; (5) Any disposition of the matter by the Executive pursuant that sub-section, may affect the sentence which was passed upon the Second Respondent at the end of the prosecution." 17 The grounds of the application were: "1. That the First Respondent was not authorised by the enactment under which he purported to make the direction, namely under Section 475(1) Crimes Act 1900, to make the direction, … 2. The decision of the First Respondent to make the direction involved an error of law, …" The basis of each ground (although put in various ways) was that fitness to plead did not touch upon or raise a doubt or question as to the guilt of Eastman or any mitigating circumstance in the case or any portion of the evidence therein. The proceeding was well out of time. 18 Each of the proceedings was ultimately amended to somewhat re-order the parties, so that, respectively, Eastman was the first defendant and first respondent, the Magistrate was the second defendant and second respondent, the Attorney-General was given leave to intervene and was the third defendant and third respondent, the Chief Justice was the fourth defendant and fourth respondent, and the relief claimed was amended accordingly. Each defendant/respondent was represented at the hearing, Eastman appearing for himself. At that hearing evidence was led as to the factual background of the matter, as to the position of the Director and as to the delay which had occurred in commencing proceedings. There was cross-examination of the Director by Eastman. The relief sought was opposed by Eastman and by the Attorney-General, reversing the position which had been put by the Attorney-General to the Chief Justice. 19 The judge of the Supreme Court who heard the proceedings considered the question of law as to the construction of s 475 at the outset, taking the view that he would only turn to questions as to the appropriateness of the proceedings and the remedies sought should he have been persuaded that the Chief Justice was not empowered to decide as he did. In the event, the judge agreed with the Chief Justice and thus did not come to those other questions. 20 After considering the history of s 475 and like provisions, and relevant authorities, the conclusion to which his Honour came was expressed as follows: "44. I am more inclined to think that the words used to convey the circumstances for the provision to operate were each descriptive of aspects of the trial and that 'guilt' encompasses the verdict that results from that process, just as mitigating circumstances and portion of the evidence are part of that process. 45. Having also made the potential subject of an inquiry 'any portion of the evidence therein', I do not think that the legislature was unmindful of the verdict and its relevance to such an inquiry. … 46. … it is the trial process which is under scrutiny in each of the circumstances which might give rise to the operation of s 475. In most cases I agree that this will measure the evidence given at the trial with other material, but I do not think that this was intended to be exclusive or to make unreviewable matters which might affect the ultimate verdict." 21 On 3 May 2002 the Supreme Court made the following orders: "1. The application to extend time for the making of an order for review under the Administrative Decisions (Judicial Review) Act 1989 in respect of the decision of the Chief Justice made on 7 August 2001 in respect of David Harold Eastman pursuant to s 475 of the Crimes Act 1900 be refused. 2. The applications for a declaration and injunction in respect of that decision be dismissed." 22 Proceedings by Eastman for review of the decision of the Chief Justice to decline to direct an inquiry into guilt on the bases put forward by him other than fitness to plead have not yet been resolved in the Supreme Court.

proceedings on appeal 23 The Director appealed to this Court and sought an order restraining the Magistrate from proceeding further until the disposition of the appeal. As the Magistrate had intended commencing hearing at least preliminary matters on 17 June and to commence examining witnesses shortly thereafter, the appeal was expedited and the Magistrate restrained from proceeding in the meantime. At the hearing of the appeal, the burden of contradiction was taken by Mr Mossop, counsel for the Attorney-General. Mr Harris of counsel, who appeared for the Chief Justice and the Magistrate, made some submissions to clarify the course of events and what was proposed, but did not enter upon the substantive debate. 24 Eastman was not represented at the hearing of the appeal. It is unnecessary to go into detail here as to the reasons for this beyond saying that he declined to appear unless collateral matters which he wished to raise were dealt with before the appeal. We should make it clear that it was not regarded as inappropriate for him to raise prior to the commencement of the hearing one of those matters, namely, disqualification of the judges sitting on the appeal. One result of this is that no party before the Court has sought to argue any procedural difficulty in the path of the Director's appeal. It will be recalled that such issues as arose in the Supreme Court were put to one side by the judge, and there are other procedural issues involved in the appeal itself. As, in substance, the direction by the Chief Justice which is in question in these proceedings was the result of a request by Eastman, and as Eastman opposed the relief sought by the Director in the Supreme Court and is in no sense a consenting party to the appeal (albeit he has chosen to absent himself), it would not be right to ignore the procedural issues which exist. Indeed, it must be borne in mind that the issue of substance being considered is a doubt as to whether Eastman was fit to plead at his trial in 1995. If he were not fit to plead at his trial, it would not lightly be supposed that incarceration during the ensuing years would have improved his condition. That leaves it open to question as to whether he is fit to make decisions about the conduct of this litigation. In this connection, it may not be irrelevant to note that his conduct before the Court when the application to restrain the proceedings by the Magistrate was considered was similar in kind to that described in the account of the original trial. For this reason, members of the Court raised the procedural issues with counsel for the Director in the course of the appeal. 25 The most fundamental of the procedural issues is the standing of the Director. There are two aspects to this. The first is whether the Director has power to bring either set of proceedings. The second is whether, if there is power, the Director was a person aggrieved within the meaning of the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act") by the decision in question, and if the answer is "no", what are the consequences for the proceedings for declaratory and injunctive relief? 26 Prior to considering these questions, we should make it clear that the actual decision in question is that reflected in the third paragraph of the communication from the Chief Justice to the Chief Magistrate, so that the topic of the examination on oath of persons is "the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial". That is the question or doubt which has been suggested by the Chief Justice and upon which a report will be made to the Executive. That conclusion accords with the common submission of all those represented on the appeal and is plainly correct. The fact that Eastman may not accept that the function of the Magistrate and the Chief Justice is so limited is not to the point. It is no part of the function of the Magistrate or of the Chief Justice to examine persons as to the conduct of those concerned with or related to the trial as such. It may be, of course, that such persons might be able to give material information on the matter of fitness to plead, but that does not make the conduct of any such person a topic of investigation, inquiry or report.

Power of Director 27 At the time of the institution of the proceedings in the Supreme Court, the Director of Public Prosecutions Act 1990 (ACT) ("the DPP Act") included the following provisions: "Part 2 Office of the Director of Public Prosecutions Division 2.1 Establishment and control 4 (1) There is established by this section an office by the name of the Office of the Director of Public Prosecutions. (2) The office shall consist of the director and the members of the staff of the office. 5 The director shall control the office. 6 (1) The director has the following functions: (a) in relation to indictable offences: (i) instituting prosecutions on indictment or summarily; (ii) conducting prosecutions on indictment or summarily, whether instituted by the director or not; (b) in relation to the commitment of persons for trial in respect of indictable offences: (i) instituting proceedings; (ii) conducting proceedings, whether instituted by the director or not; (c) in relation to summary offences: (i) instituting prosecutions; (ii) conducting prosecutions, whether instituted by the director or not; (d) assisting a coroner in inquests and inquiries; (e) in relation to proceedings for contempt of a court or for an order requiring a person to enter into a recognisance, with or without sureties, to keep the peace or be of good behaviour - (i) instituting proceedings; or (ii) conducting proceedings, whether instituted by the director or not; (f) in relation to forfeiture orders or the recovery of pecuniary penalties: (i) instituting proceedings; (ii) conducting proceedings, whether instituted by the director or not; (iii) coordinating or supervising the institution or conduct of proceedings; (g) in relation to civil remedies in connection with specified matters: (i) instituting proceedings; (ii) conducting proceedings, whether instituted by the director or not; (iii) coordinating or supervising the institution or conduct of proceedings; on behalf of the Territory or a Territory authority; (h) making applications for orders to review under the Magistrates Court Act 1930, section 219C, and conducting such proceedings; (i) for prosecutions or other proceedings mentioned in paragraphs (a) to (h) - causing the proceedings to be brought to an end; (j) for appeals in relation to matters mentioned in paragraphs (a) to (i): (i) instituting or responding to appeals (including appeals against sentence); (ii) conducting appeals (including appeals against sentence) as appellant or respondent, whether instituted or responded to by the director or not; (k) attending a meeting of the Sentence Administration Board established under the Rehabilitation of Offenders (Interim) Act 2001; (l) representing or acting as agent for the Commonwealth director; (m) making statements or providing information to particular persons, to the public or to particular sections of the public (whether about decisions taken and the reasons for those decisions, or otherwise) relating to the exercise of powers or the performance of functions or duties under this Act; (n) functions given to the director under another provision of this Act or any other Territory law; (o) such other functions as are prescribed by the regulations; (p) doing anything incidental or conducive to the performance of another function. (2) In subsection (1)(g): specified matter means - (a) the recovery or ensuring the payment of an amount of tax; or (b) a prosecution, whether instituted or conducted by the director or not; (c) an alleged or suspected offence, whether a prosecution has been instituted or not. … 10 (1) The director may, in respect of a prosecution or proceedings conducted by the director, exercise such rights of appeal (if any) - (a) as are exercisable by the Attorney-General; or (b) in the case of a prosecution or proceedings the conduct of which the director has taken over from a person other than the Attorney-General - as would have been exercisable by that person if the director had not taken over the conduct of the prosecution or proceedings. … (3) In this section: right of appeal includes - (a) a right to apply for a review or rehearing; and (b) a right to institute proceedings in the nature of an appeal or of an application for a review or rehearing; and (c) a right to appeal against sentence. … 18 The director has power to do all things necessary or convenient to be done in connection with the performance of his or her functions. … Part 3 Director and members of the staff of the office Division 3.1 Director 22 (1) The Executive may by instrument appoint a person to be the director. (2) Subject to this Act, the director shall be appointed for the period (not exceeding 7 years) specified in the instrument of appointment but is eligible for reappointment. … Division 3.2 Members of the staff 30 (1) The staff assisting the director shall be employed under the Public Sector Management Act 1994. (2) The Public Sector Management Act 1994 applies in relation to the management of the staff assisting the director. (3) The director has all the powers of a chief executive in relation to the staff assisting him or her as if the staff were employed in an administrative unit under the control of the director. … Part 4 Miscellaneous 35 The Executive may make regulations for this Act." 28 At the relevant time, reg 3 of the Director of Public Prosecutions Regulations 1991 made pursuant to s 35 of the DPP Act included the following: "3. For the purpose of paragraph 6 (1) (j) of the Act the following functions are prescribed: (a) instituting or responding to, or conducting, on behalf of the Territory or any other person as the appellant, applicant or respondent, an appeal, application or review (including administrative review) arising out of proceedings referred to in paragraph 6 (1) (b) of the Act; …" 29 It was submitted on behalf of the Director (as it had been in the Supreme Court) that the provisions of s 6(1)(p) and s 18 are sufficient to provide the power to institute and conduct (and respond to) proceedings by way of applications for judicial review of decisions made under s 475 of the Act. Stress is laid upon the width of the expressions in those sections, particularly s 18, of the DPP Act. Appeal was made to the cases which have considered the effect of s 51(xxxix) of the Constitution to support the width of what might be called the incidental power of the Director. In our view, those constitutional cases have little to say about the present problem. 30 We do not doubt the width of what might be called the incidental powers in relation to the performance of the functions of the Director. However, we can see no function of the Director which has any direct connection with a criminal proceeding once completed, in the sense that all appeals have been exhausted. We do not agree that he has any general role to uphold convictions. Furthermore, the Director does not have any roving commission to represent the Executive government or the public interest in relation to criminal law in the Australian Capital Territory. The Director has only those statutory functions vested in him. Any wider role would generally be the function of the Attorney-General or the Executive government as a whole. It is illuminating to appreciate that a principal plank in the argument for the Director on the question of validity was that there was no curial remedy arising out of s 475 of the DPP Act, that the function being exercised by the Chief Justice was purely administrative, and the response depended entirely upon the Executive government. The Director does not represent the Executive government in that sense. It has not been suggested that s 475 involved any appeal or right of appeal within the meaning of s 10 of the DPP Act and it clearly did not. 31 This is not to say that circumstances may not arise after appeals are exhausted where the Director might have power to act. For example, if there were an external inquiry into the conduct of a completed prosecution by the Office of the Director ("the Office"), or if the Director or member or former member of the Office were called to give evidence to such an inquiry, would his statutory functions would run far enough to enable a challenge to be made to the validity of such an inquiry? The issue of power is best tested by assuming invalidity of the s 475 direction. In the present case, the evidence before the Supreme Court makes it apparent that it is inevitable that some former officers of the Office, and perhaps the former Director, will be called upon to give information on oath to the Magistrate as to the fitness to plead of Eastman during his trial. Indeed, the Director has been given leave to appear. If the topic of the inquiry and report was the conduct of the prosecution of Eastman by the then Director, in our opinion there would be power in the current Director to seek to restrain such an inquiry. Whilst the constitution of an "office" without corporate personality is unusual and shadowy, it is a sufficient indication that there is continuity of an organisation such that it would be necessary and convenient that the present Director should have the power to defend former Directors and officers from an invalid inquiry into their conduct if so advised pursuant to s 6(1)(p) and s 18 of the DPP Act. 32 We have held that the Magistrate is not entitled to conduct such an inquiry. However, counsel for the Director submits that the distinction between such an inquiry and that which is proposed is more apparent than real for present purposes, even assuming that the proposed inquiry is kept within proper bounds by the Magistrate. The Magistrate, counsel assisting, and those cross-examining will be able to fully test the extent of knowledge of personnel of the Office as to the fitness of Eastman over a period of many months before and during the trial and doing so will inevitably, no doubt, involve to some extent an examination of the processes of the Office as well as the extent of involvement of individual officers. With some hesitation, it seems to us that, as suggested by counsel for the Director, the distinction is too fine. At the least, the current Director has a legitimate interest in the confidentiality of the conduct of a previous prosecution by the Office and the modus operandi of the Office during the time of a previous Director. That confidentiality will be disturbed, if not lost, by the inquiry. Further, the current Director is responsible for the records of the Office in relation to former prosecutions. Production of some or all of those records will, no doubt, be sought. The Director should have power to seek to resist such demands for production if he deems it appropriate. In our opinion, the Director has power to commence and pursue each proceeding and this appeal. It should be clear that we have only considered the scope of the statutory incidental power of the Director. It is entirely a matter for the Director as to whether bringing the proceedings is an appropriate use of the power. It should also be clear that affirming the existence of the power to bring the proceedings does not involve any implication that, leaving aside the scope of s 475 of the Act, there cannot be or should not be an inquiry involving a past or present Director or past or present officers of the Office.

Person Aggrieved? 33 The ADJR Act provides that a person who is aggrieved by a decision may make application pursuant to the Act and reference to a person aggrieved by a decision includes reference to a person whose interests are adversely affected by the decision (s 3(4)(a)(i); s 5(1)). Counsel for the Director referred to the decision of the Full Court in Ogle v Strickland (1987) 13 FCR 306 as establishing the width of these concepts. The circumstances as to the proposed inquiry to which we have referred when discussing power would also indicate that the interests of the Office, and so the Director, are affected in the relevant sense.

Declaration 34 Although the proceedings seek an injunction, that relief was and is not pressed because of the identity of the respondents. Counsel for the Director confirms that the only utility of that proceeding would be in the event that leave to extend time to make the application under the ADJR Act were not granted on a basis which did not deal with the substance of the argument. It was submitted for the Attorney-General in the Supreme Court that such use of a declaration would be an abuse of process. Whether that be so or not, it is a discretionary remedy and there would be powerful reasons against making any declaration simply to avoid the statutory time limit. The grant of a declaration is not ordinary or usual relief where an extant administrative decision is being challenged. Section 34B of the Supreme Court Act 1933 (ACT) and O 55 of the Supreme Court Rules 1937 deal with the conventional administrative law remedies.

Leave to Appeal Required? 35 The order of the Supreme Court dismissing the proceeding for a declaration was not an interlocutory order, but a final order, and there is an appeal as of right. However, as we have pointed out, there are discretionary reasons against granting the relief sought. It is contended for the Director that the refusal of the extension of time and the consequent dismissal of the proceeding under the ADJR Act were not interlocutory orders but, rather, finally disposed of the proceeding so as to give rise to an appeal as of right, citing Paramasivam v Flynn (1998) 90 FCR 489 at 493. In our opinion, the passage referred to in that case is, at best, equivocal on the topic and did not settle the question which arose in that case. We add that the question which arose in that case is not the same as that which arises here. An application for an extension of time to commence proceedings of the type considered in that case is an application in itself, rather than being a step in another proceeding. There are many authorities as to what orders are interlocutory to which we have not been referred and we are far from persuaded that leave is not necessary to appeal against the dismissal of the ADJR Act proceeding. Counsel for the Director did ultimately indicate that, if necessary, he applied orally for leave to appeal, and no other party who was represented raised any objection, although Eastman was not represented at the hearing. 36 The Supreme Court did not deal with the question as to whether time to bring the ADJR Act proceeding should be extended as such, and dismissed the proceeding because it was held that the main proceeding would not have succeeded in any event on the merits. There are a number of discretionary considerations which might have told against the grant of any extension of time, including the substantial delay, the lack of any substantial prejudice or interference with the interests of the Director even if there was standing, the repeal of s 475, the arguable nature of the point of substance, the concerns about the administration of criminal justice which are contained in the judgments of some of the Justices of the High Court in Eastman v The Queen and possible injustice to Eastman. 37 However, if the direction of the Chief Justice was not authorised by s 475 there would be compelling reasons for the grant of relief, and if there is a serious doubt about that authority there are compelling reasons for prompt resolution of the issue in the public interest. The Magistrate is about to embark upon what purports to be the compulsory examination of witnesses on oath. Many witnesses would, no doubt, prefer not to be examined in this way, either in whole or in part. It is inevitable that much that would otherwise be confidential will be disclosed. It is inevitable that much that will be said by witnesses and those examining them will be defamatory. The report by the Chief Justice is also likely to disclose much that would otherwise be confidential, and is likely to be defamatory of some persons at least. If the direction was not authorised, and the inquiry is beyond power, irretrievable loss of confidential information and reputation may have occurred, and many who participate will risk incurring liability as a consequence. 38 In our opinion, none of the procedural issues preclude the substance of the appeal being considered.

Argument for the Appellant 39 Counsel for the appellant developed his comprehensive written submissions in oral argument under five headings:

1. The ordinary meaning of the word "guilt" in s 475(1). It was submitted that the ordinary meaning of the word "guilt" necessarily involves complicity in the crime charged, whereas fitness to plead is only an aspect of the trial process and has nothing to do with guilt in the ordinary sense of the word. In this connection, counsel referred to the history of the manner in which fitness to plead has been dealt with up to and including the present time, both in the Australian Capital Territory and elsewhere.
2. Absence of a remedy. It was submitted that if it were found that Eastman was unfit to plead during the trial there is no remedy available to the Executive government to repair the situation. The remedies which are available to the Executive government are the grant of a pardon or the remission in whole or part of the sentence. Neither is adapted to deal with unfitness to plead.
3. The mechanism chosen. The way in which s 475 works is not consistent with irregularities in the trial process being the topic for investigation. The magistrate merely obtains information which, if the Executive directed the inquiry, is presented to the Executive without any judicial intervention. Even in the case where a judge directs the inquiry, it is odd that the magistrate is chosen as the person to inquire if the topic for inquiry is irregularities in the trial on indictment in the Supreme Court.
4. The history of s 475 and the New South Wales equivalent and the extrinsic materials relevant to that history. These, it was said, support the conclusion that "guilt" involves complicity in the crime charged.
5. Various judicial and extrajudicial statements by judges concerning s 475 (or, more particularly, the New South Wales equivalent) which used language consistent with the section authorising an inquiry into conviction, particularly those relied upon by the Supreme Court. The gist of counsel's submission was that none of those statements was made in a context in which the present question was squarely raised, and certainly not in a context in which a s 475 inquiry was limited to an aspect of the trial process.

Argument for the Attorney-General 40 Counsel for the Attorney-General supported the reasoning of the Supreme Court. It was submitted that there is no such thing as "guilt" in the abstract so far as the criminal law is concerned, and that "guilt" must mean guilt found at the particular proceeding which led to the conviction so that "guilt" in s 475 should be understood in the sense of a finding of guilt. So construed, a doubt or question as to whether there was a fundamental flaw in the trial process would amount to a question or doubt about guilt as the accused should not have been found guilty. 41 Counsel undertook a helpful analysis of the judgments in Eastman in the High Court in order to establish the proposition that those judgments had identified a potentially serious injustice which the appellate process was not capable of remedying, and submitted that this was the very kind of situation which should be covered by a beneficial reading of s 475. It was said that a majority of the High Court considered that the further evidence which was sought to be tendered in the High Court did give rise to a doubt or question as to Eastman's fitness to plead during the trial, although a majority held that that evidence could not be received by the High Court. There were also at least three Justices who took the view that, even without that further evidence, there were sufficient indications before this Court on appeal to establish a doubt or question as to Eastman's fitness to plead. It was submitted that it was apparent that the Chief Justice had concentrated his attention upon whether a real doubt or question had arisen and, although he had not been prepared to make that finding purely upon the High Court decision, he was persuaded to do so by the further information provided by Eastman, principally, no doubt, the report of Dr Jolly. Once he had reached that conclusion, it was apparent that there was a real question as to the administration of criminal justice in the Australian Capital Territory with which the appellate system was not able to cope, and that Eastman might have been improperly found guilty because the trial should not have proceeded. That question having arisen, the method of endeavouring to set it to rest was by inquiring into the actual fitness to plead of Eastman. Information obtained by virtue of the inquiry, and analysis of it by the Chief Justice, might enable conclusions to be drawn one way or another as to the fitness to plead of Eastman during his trial. If fit to plead, then the doubt about conviction would be resolved. If it was concluded that Eastman were unfit to plead, then the Executive would need to consider what to do about it. The question of pardon or otherwise in those circumstances was entirely a matter for the Executive. In any event, the Executive could propose a legislative solution to the problem such as had occurred in the Chamberlain case (see the explanation in Re Conviction of Chamberlain (1988) 93 FLR 239 particularly per Nader J at 241-242). 42 It was submitted that no authority would stand in the way of the construction of s 475 found by the Supreme Court and that such construction was supported by statements in the authorities referred to in the Supreme Court and by the approach of judges of the New South Wales Supreme Court who had acted as justices of the peace under the equivalent New South Wales section.

Argument for the Chief Justice and the Magistrate 43 Counsel did not present any separate argument on validity, but did support the analysis of counsel for the Attorney-General of the Eastman decision in the High Court and of the approach taken by the Chief Justice. He also confirmed that the inquiry would be confined to the actual fitness to plead of Eastman.

Conclusion 44 In considering the discussion which follows, it needs to be borne in mind that the Chief Justice did not refer to the other limbs of s 475, namely, mitigating circumstances or part of the evidence, in his remarks, and neither has been relied upon by the Supreme Court or in argument before this Court. We will also refer to the result of the direction under s 475 as being an inquiry followed by a report. 45 We have no difficulty in accepting that the Chief Justice was, and was entitled to be, satisfied that there is a doubt or question as to whether Eastman should have been convicted at his trial, as there is a question or doubt as to his fitness to plead during the trial. There is no issue about those matters in these proceedings. We also have no difficulty in accepting that, that being so, it was an appropriate case to direct an inquiry pursuant to s 475 if the section permitted it. Again, there is no issue about that in these proceedings. We need not rehearse the analysis by counsel for the Attorney-General in support of these propositions, nor conduct any detailed analysis of our own of the various judgments in Eastman in the High Court. The only question is whether, acknowledging that the doubt which exists about the justice of the conviction cannot be resolved by appeal, this can be cured by a direction pursuant to s 475. 46 We can appreciate that an affirmative answer to that question may be seen to provide a ready and convenient solution to what might otherwise be seen as a stain upon the administration of justice in the Australian Capital Territory in these very unusual circumstances. It is but a short step to say that a beneficial construction of a remedial provision, not precluded by authority, should be adopted in order to achieve that result. However, that short step involves negotiating a crevice of some magnitude. If the judgment of the Supreme Court is correct, then s 475 had always encompassed all cases in which there is a credible allegation of a defect or irregularity in the conduct of the trial (and presumably the process of bringing the accused to trial) which, if established, might lead to the conviction being regarded as unsafe or unsatisfactory. In other words, it would be a backstop against any form of injustice in relation to the criminal process which might have led to a conviction which should not have occurred. Although s 475 and its New South Wales equivalent have been repealed and another, more detailed, set of provisions substituted, the question in issue here is by no means academic (see s 422(1)(a) Crimes Act 1900 (ACT); s 474C(2), s 474E(2) Crimes Act 1900 (NSW)). 47 The conclusion which we have reached is that an inquiry and report which is limited to the fitness to plead of an accused person who has been convicted is not authorised by s 475. Put another way, a doubt or question restricted to fitness of the accused to plead is not a doubt or question as to the guilt of that person. It does not follow that questions of fitness to plead (or other procedural irregularities) are necessarily excluded from an inquiry pursuant to s 475. This is not because the inquiry becomes an inquiry into the trial process, as on an application for a new trial, but, rather, because the procedural irregularity may throw light upon the facts and circumstances which it is necessary to understand in order to assess a doubt about guilt. For example, fitness to plead could conceivably be relevant to understanding why particular evidence was or was not led at the trial, or why particular lines of cross-examination were not pursued. There could also be cases in which the mental state of the accused at the time of the trial may be relevant in assessing the mental state of the accused at the time the offence was alleged to have been committed. The Supreme Court relied upon passages from the 1985 report by Wood J of the New South Wales Supreme Court sitting as a justice of the peace in an inquiry pursuant to s 475 into the convictions of Anderson, Alister and Dunn, which were again relied upon by counsel for the Attorney-General in argument. Those passages and their full context are too lengthy to warrant setting out. In our opinion, those remarks have been misunderstood. His Honour discusses how the process of investigation and of the trial were interrelated with the question of guilt which was being examined in the circumstances of that case. This illustrates the principle which applies. It is not necessary to consider the manner in which that principle was applied in the detailed circumstances of that case. 48 In our view, the argument on behalf of the Director is substantially correct in each of its integers. The ordinary meaning of the word "guilt" relates to the accused having committed the crime in question. If it had been intended that the section would pick up errors or irregularities in the process by which the conviction took place, it would be expected that the legislature would have said "whenever any doubt or question arises as to the said conviction". 49 The development of the law concerning fitness to plead, including relevant authorities, was recently traced in the judgment of Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251 at 273-293 [112]-[203]. See also R v Judge Martin; Ex parte Attorney-General [1973] VR 339. At common law, those unfit to be tried were liable to be kept in indeterminate detention at the pleasure of the Executive. As the historical surveys in both Mailes and Judge Martin show, there have been different statutory regimes established at different times to deal with the issue. However, the question of fitness to plead has never been relevant to guilt of the crime charged and, indeed, would be irrelevant and inadmissible as to that issue. Indeed, it has been said on occasion that a jury which has decided the question of fitness to plead should not decide the question of guilt. 50 We regard the absence of remedy in relation to any procedural irregularity found to have occurred to be a telling point made by counsel for the Director. In modern times, the remedy for a trial irregularity is a new trial or, in the case of lack of fitness to plead, compliance with whatever statutory regime is in force at the time. A new trial cannot be ordered by the Executive. The statutory regime as to fitness to plead constituted by Pt 11A of the Act would not be applicable. We do not regard the possibility that the Executive might propose legislation as being a remedy in the relevant sense. That step does not involve any power of the Executive which can operate in the individual case. Furthermore, legislation can be proposed by any member of the legislature on the suggestion of any member of the public. If an inquiry in order to consider legislation were in prospect, it would be expected that the Executive would utilise such tools as the Inquiries Act 1991 (ACT) or the Royal Commissions Act1991 (ACT). Incidentally, that was the course which was taken in the Chamberlain matter to which reference was made by counsel for the Attorney-General. Furthermore, the historical material to which we shall refer supports the proposition that the purpose of the section was to aid the Executive in the exercise of the powers it did have in relation to pardon and remission of sentence. 51 We agree with the submission that the mechanism chosen by the legislature points to the obtaining of information relevant to the commission of the crime, rather than information relevant to a review of the regularity of the conduct of a trial on indictment before a jury in the Supreme Court. The procedure laid down by s 475 is rather like the role of a magistrate at a committal hearing, and is singularly inappropriate for the kind of review of the regularity of proceedings at a trial which a court of criminal appeal might now undertake. 52 If any doubt remained as to the proper construction of the section taking these factors into account (and we do not think that there does), in our opinion, it would be set at rest if the history of the section and extrinsic material in relation to it were considered. Although the Court was referred to a number of sources relevant to that issue, it is unnecessary for present purposes to go beyond the account given in the judgment of Hope JA in Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 43-47. Of particular significance in that account is the following quotation from the second reading speech when the predecessor of s 475 was originally enacted: "… Clause 383 contains an important provision. In cases of capital offence, especially where the victim is a female, representations are frequently made to the Government - after the person charged with the offence has been found guilty - which reflect on the character, the honor, or the chastity of the prosecutrix, or some of the witnesses on her behalf. As the law stands at present the Government have not the power to institute inquiries on oath to ascertain whether the imputations or reflections are or are not well-founded. The clause provides: (cl 383(1) was read). This appears to me to afford much more solid ground on which the Executive may proceed when they have to deal with capital cases where doubts are thrown on the character of persons connected with them." 53 In this matter in the Supreme Court the judge referred in his reasons to other passages from the judgment of Hope JA in Varley as follows: "21. In his discussion of the provision, Hope JA, at 45, referred to the description of O'Connor J in White v The King (1906) 4 CLR 152 at 165 as to the objects of the section: '…The object of the new provision was to enable the case to be re-opened where no point had been reserved at the trial, but some facts had come to the notice of the Government indicating that the prisoner might have been improperly convicted, and also to enable the Crown, where the prisoner's sentence had been served, and he appeared to have been unjustly convicted, to give him the opportunity of having his character cleared by a public proceeding.' Hope JA also observed, at 46: 'Section 475 is a remedial section, and consequently should be construed beneficially. This well-known principle does not of course mean that courts can construe a statute so as to achieve a result which they think the legislature should have enacted; it means that they should construe the statute to give the fullest effect to the legislation's intention to remedy the mischief aimed at which the language of the statute will allow. The principal mischief to which the provision was directed seems clear enough. Both in 1883 and in 1900, there was no way in which any doubt or question concerning a conviction or a resulting sentence could be effectively investigated. The Crown could arrange for an inquiry to be held, but there was no statutory basis for doing so, there could be no public inquiry, evidence could not be given on oath and persons could not be compelled to provide information. No doubt since it was established the appellate system has been able to handle many of these problems, but subject to the operation of an appellate system the Crown might be faced with a possible injustice to a convicted person which it could not deal with satisfactorily, and there would be no effective means available to the convicted person to seek to have his name cleared.' Later, Hope JA described the application of the section to the case before him, at 48: 'To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry. To adopt the language of Nagle CJ at CL in Varley v Attorney-General of New South Wales (at 12), 'the section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s 40) … or, in a petition, before the Governor … which might cause him, for want of a better word 'unease' in allowing a conviction to stand'.'" 54 At the time of the introduction of s 475, there was only a rudimentary system of appeals from conviction and so there were no means of remedy in the hands of the Court in cases in which there may have been such doubt about the guilt in the ordinary sense of the person convicted such that the conviction ought not, in justice, to stand. The only remedy in such a case lay with the Executive power of pardon. The deficiencies in obtaining the information necessary to consider use of that power are referred to in the passages cited above. The development of a sophisticated and comprehensive appellate regime in criminal cases in the Australian Capital Territory and Australia generally in the ensuing years would not, in our opinion, support the view that the scope of s 475 would be widened now compared with its original scope. Indeed, rather the contrary would be the natural conclusion. 55 It is true that in the passages from Varley to which we have referred, and some of the passages from other cases referred to by counsel for the Attorney-General and by the Supreme Court, the section has been spoken of, in general terms, as relating to an inquiry into conviction. This, of course, is correct so far as it goes. Unless there has been a conviction, the section has no operation. It is the nature of the inquiry which is at issue and, in our opinion, none of the statements to which reference has been made focus upon an inquiry which does not involve a question or doubt as to guilt in the ordinary sense. We have already referred to the report on the convictions of Anderson, Alister and Dunn by Wood J (as he then was). The direction pursuant to s 475 in respect of which his Honour was acting as a justice of the peace related to guilt in the ordinary sense, although, as we have pointed out, his Honour looked at aspects of the trial process as part of that more general inquiry. In the present case, a general inquiry into the guilt of Eastman has been declined. If the Attorney-General remains of the view that there ought to be an inquiry, then consideration will no doubt be given as to whether it is appropriate to use other means to achieve that result.

proposed orders 56 We would propose that the applicant Director of Public Prosecutions be granted leave to appeal from the judgment and orders of the Supreme Court in proceedings number SC 149 of 2002 made 3 May 2002, that the appeal be allowed, that the orders of the Supreme Court be set aside and in lieu thereof it be ordered that (1) the time for lodging of the application for an order for review under the ADJR Act in respect of the decision of the Chief Justice made on 7 August 2001 be extended to 21 March 2002 and (2) that decision be set aside. In view of the identity of the various parties, we would make no order for costs, but would grant leave to any party to apply in relation to costs provided the motion is filed and served within fourteen days of the date of the orders. 57 We would dismiss the appeal from the judgment and orders of the Supreme Court in matter number SC 148 of 2002 and make no order for costs. That proceeding has no utility in view of the orders which have been made in relation to Supreme Court matter number SC 149 of 2002. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Gyles.

Counsel for the appellant: D A Buchanan SC

Solicitor for the appellant: Director of Public Prosecutions (ACT)

Solicitor for the third respondent: ACT Government Solicitor

Solicitor for the fourth respondent: Registrar, Supreme Court of the ACT

Dates of hearing: 20, 21 June 2002