Dpp v Eastman and Ors [2002] ACTSC 35

Section 475 Crimes Act

3. The decision of which the Director complains was made under s 475 Crimes Act 1900. That section was repealed with effect from 27 September 2001. It has been replaced by what is now s 422 of the Crimes Act 1900 in terms which recast the effect of the section. The present provision now only permits an application to be made where no previous application has been made to the court for an inquiry.

4. At the time the Chief Justice made his decision, s 475 of the Crimes Act provided:

"Executive or judge may direct inquiry

(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her 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 his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or been duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.

(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 him or her, or to the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just."

5. Although Mr Eastman had raised other matters for the Chief Justice's consideration, the Chief Justice determined that the doubt or question the subject of his direction to a magistrate be to summon and examine persons in respect of :

"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".

6. The Director's application was opposed by Mr Eastman and by the Attorney-General to whom I granted leave to intervene in these proceedings. The Attorney-General had presented submissions to the Chief Justice that the inquiry was not authorised by s 475 of the Crimes Act, but before me submitted that it was.

7. The matters which no doubt influenced the Chief Justice to embark upon this inquiry were the remarks of certain of the judges of the High Court in Mr Eastman's appeal to that court. The court, whilst granting special leave to appeal to Mr Eastman, dismissed the appeal in particular ruling that s 73 of the Constitution did not authorise the reception of fresh evidence on appeals from Federal Courts and other courts exercising Federal jurisdiction.

8. Several of the justices of the Court expressed concern at the issue of fitness to plead and the failure of the Federal Court on appeal to consider the issue (see Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 31 [99] per Gaudron J, Kirby J at 96 [287], Haynes J at 108 [324] and Callihan J at 134 [407].

9. In making his decisions to make a direction pursuant to s 475 the Chief Justice said:

"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.

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."

Later, the Chief Justice gave the following directions:

"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."

10. It was the Chief Justice's reasoning in coming to the decision to direct an inquiry the Director's applications seek to challenge. If this reasoning amounts to an error of law and the Chief Justice was not otherwise empowered to enter upon the Inquiry and give the decision that he did, then it was put that I should say so and provide a remedy.

11. Accordingly, I propose to consider this issue at the outset and to only turn to the questions of the appropriateness of the proceedings and the remedies sought should I be persuaded that the Chief Justice was not empowered to decide as he did.

The submission of the Director of Public Prosecutions as to "guilt"

12. It was the Director's submissions that as a matter of proper statutory construction, s 475(1) of the Crimes Act 1900:

"...does not permit a direction for an inquiry where the doubt or question which has arisen concerns the prisoner's fitness to plead at his or her trial rather than a matter affecting the question of whether the prisoner committed the crime of which he or she was convicted."

13. It was said by Mr Buchanan SC, counsel for the Director, that the word "guilt" in its ordinary and natural meaning meant "the fact or state of having committed an offence". It was said that this was a matter distinct from the verdict or conviction in a criminal trial. It was said that the doubt or question referred to in the section should be confined to the facts or state of having committed an offence and not extend to the verdict or conviction.

14. I was taken to a number of dictionaries and law lexicons. It was also suggested that I might gain enlightenment as to the meaning from cases concerning the withdrawal of a plea of guilty and cases on lies as a consciousness of guilt.

15. I was also taken to the background to s 475 of the Crimes Act 1900. The predecessor of s 475 of the Crimes Act 1900 (ACT) was enacted as s 383 and s 384 of the Criminal Law Amendment Act 1883 (NSW) (46 Vic No. 17). It became part of the law applying in the Australian Capital Territory by the adoption and modifications of the NSW Crimes Act to the Territory. The amendment which distinguishes s 475 of the Crimes Act 1900 (ACT) from its New South Wales counterpart is to alter the examining Justice provided for in the NSW legislation to that of Magistrate in the ACT legislation. There is no duplication of a provision like s 475 in any legislation in the other States of the Commonwealth nor the United Kingdom (Varley v Attorney-General of NSW (Nagle CJ at CL, unreported, 19 October 1979).

The submissions on behalf of the Attorney-General

16. An alternative view was put by Mr Mossop, counsel for the Attorney-General, that "guilt" is used as an expression consistent with the verdict that a jury returns before a conviction is entered. It is not, as I understand Mr Buchanan to contend, a construction that simplistically substitutes "guilt" for finding "finding of guilt". Rather it recognises that the guilt of an accused is the compendium of the evidence and submissions which is evidenced by the finding that a jury makes when the question of how they find an accused is answered by the jury's foreman or forewoman.

17. I accept that the contrasting views expressed on behalf of the Director and the Attorney-General are not directly dealt with by the authorities to which the Director refers in his extensive written submissions. However, I do not think that the case which can be considered the leading case on the construction of the section and which considered s 475 of the Crimes Act 1900 in detail (although not on this point) lends any real support to the Director's proposition. That case was Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 and it was subjected to extensive analysis by counsel for the Director and the Attorney-General.

18. In that case the NSW Court of Appeal was called upon to consider whether the words "of its own motion" could authorise the institution of judicial proceedings in the Supreme Court for the determination of a claim that the court should direct an inquiry under s 475 of the NSW Act.

19. Justice Kirby, who at that time was the President of the NSW Court of Appeal, described the provision, at 37, in these terms:

"First, there is the consideration that the section is a unique provision. It should, in my view, be given a beneficial construction and one which furthers and does not frustrate the purpose evident in the legislation. This purpose is the safeguarding of the administration of justice and the assurance that, to the extent that our legal procedures permit it, no person shall suffer the stigma of a conviction, still less the burden of continuing deprivation of liberty or the imposition of other sanctions, where a doubt or question has arisen as to his guilt or as to evidence upon which he has been convicted. These are, after all, very serious concerns. The law must put a high store on finality, especially in criminal trials. It must uphold the decisions of the juries and of courts, duly arrived at. But it must also attend sensitively to the correction of errors where they can be demonstrated. Section 475 affords a legislative warrant to the Executive Government and the Court in certain limited circumstances, to require review of a conviction although duly entered."

He differed from the majority, Hope JA, with whom Samuels JA agreed, in that case as to the result but his remarks here are consistent with those of Hope JA.

20. Importantly, a little later in his judgment, Kirby P remarked, at 40:

"It should never be forgotten that what is under consideration here is an allegation of doubt as to a person's conviction."

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] HCA 53; (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."

"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"."

22. The distinction that Mr Buchanan makes in his submissions was not made by any of the judges cited above. Their approach was to regard the conviction as evidencing the finding of guilt and the doubt or question as one going to that result.

23. The notion that s 475 had effect where a person might have been "improperly convicted" is referred to by Hunt J (as he then was) in Rendell (1987) 32 A Crim R 243 at 245 although Mr Buchanan stressed that the expression was followed by the sentence "The section itself says that a direction can only be given where a doubt arises as to the prisoner's guilt". In Sen v The Queen [1991] FCA 296; (1991) 30 FCR 173 at 176 the Full Court of the Federal Court referred to s 475 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory as "might well provide a means by which the correctness of such a conviction may be examined ..."

24. I was also referred to two decisions of Greg James J in R v Suey [2001] NSWSC 543 and Moore [2000] NSWSC 364; (2000) 112 A Crim R 331, neither of which, in my view, casts further light on the interpretation of s 475 for which the Director contends.

25. These cases were put by Mr Buchanan as not precluding a distinction being made in the expression "guilt" in s 475 of the Crimes Act 1900 (ACT) such that it refers only to the fact of guilt, not the finding of guilt. I accept that the point that Mr Buchanan now makes was not an issue in any one of the cases to which he refers. Nonetheless, the comments in these cases do not positively support the distinction that Mr Buchanan sought to draw but rather, in my view, they reflect the view of the section that Mr Mossop was urging.

26. I was also referred to a report of an inquiry held under s 475 of the Crimes Act 1900 (NSW) into the convictions of Messrs Anderson, Alister and Dunn made by Wood J in 1986. The reference given to Wood J by the Governor was in very general terms:

"Pursuant to the provisions of Section 475 of the Crimes Act, 1900, the Honourable Mr. Justice James Roland Tomson WOOD_, a Judge of the Supreme Court of New South Wales, be directed to inquire into doubts or questions as to the guilt of Timothy Anderson, Paul Alister and Ross Dunn, who were convicted on 1st August 1979, at the Supreme Court of New South Wales, Sydney of conspiracy to murder (recorded against each of them) and of attempted murder (recorded against Paul Alister and Ross Dunn) whereupon each of them was sentenced to penal servitude for sixteen years for the offence of conspiracy to murder to date from 16th June, 1978 and Paul Alister and Ross Dunn to sentences of sixteen years for the offence of attempted murder, such sentences to run concurrently with the sentences of conspiracy to murder, or any mitigating circumstances in the case, or the evidence therein and to summon and examine on oath all persons likely to give material information in the matter."_

It was therefore necessary for Wood J to identify the doubts or questions, as well as inquire into and report on them. That squarely raised the issue of the scope of an inquiry under s 475. Among the issues was whether there had been a failure in the trial process by the petitioners being denied access to certain documents.

27. A similar argument to that advanced by the Director in these proceedings was put by the Crown to Wood J. It was said that any irregularity of the trial processes would be irrelevant unless it led to a doubt or question as to guilt.

28. In his report on the Inquiry into the conviction of Lorraine May Price, Slattery CJ at CL had referred to s 475 and had said (at 9 of his report):

"Section 475 requires me to examine the evidence in the trials and also the conduct of the trials, and to consider whether the additional evidence, if accepted, could throw any light on Mrs Price's conviction and, if so, whether it in fact casts doubt on her guilt."

29. Wood J accepted that as the correct approach concerning the task of a Justice when inquiring into questions or doubts concerning guilt. He went on to say:

"It is my view that I should consider the evidence at and the conduct of the trial, in the light of the further evidence and submissions received in the Inquiry, in order to determine whether the questions or doubts as to guilt have been resolved or remain. In this regard, I take the view that guilt has the meaning given to it in the trial process, that is, guilt established beyond reasonable doubt. So far as any question or doubt may concern a conflict of evidence or the reliability of a witness, or may depend on fresh evidence concerning aspects of the case proven by the Crown, it seems to me that I must weigh those matters and express my own opinion in the report. So far as the question or doubt may concern a possible miscarriage of justice or involves the possibility that the convictions were improperly obtained, due to some error in the trial process, it seems to me that I must explore whether or not there was a mishap, and report my conclusion both as to its occurrence and as to its significance in relation to the guilt found by the convictions."

30. In the report of the Inquiry into the conviction of Alexander Lindsay dated 29 July 1991, Loveday J adopted the views of Wood J set out in the preceding paragraph.

31. Mr Buchanan sought to differentiate the approach that Wood J took from that of the Executive or Justice who might initiate an inquiry. Under s475 of the NSW Crimes Act, Wood J was acting on a reference by the Executive. He was the Justice required to summon and examine witnesses but unlike a Magistrate under the ACT legislation, he was also called upon to report, just as the initiating Justice is required to report under the ACT legislation. Mr Buchanan said that Wood J's remarks were an attempt to make meaningful the task that the Executive had set him.

32. I do not agree that what he said can be so confined and distinguished in that way. Wood J was analysing the task of determining the scope of the doubt or question as to guilt. He considered the guilt to which s 475 refers, to be directly referrable to the verdict given by the jury. If there was a defect in the trial process, there is at least a question which must be answered as to its significance in relation to the verdict given, or, as Wood J put it, "the guilt found by the convictions".

33. I agree that the question of fitness to plead might ultimately have no significance for the finding of guilt. However, the wide range of matters which are canvassed before the Mental Health Tribunal and encompassed by a fitness to plead determination may well be significant for such a finding. Section 68(3) of the Mental Health (Treatment and Care) Act 1994 provides:

"The tribunal shall make a determination that a person is unfit to plead to a charge if satisfied that the person's mental processes are disordered or impaired to the extent that the person is unable -

(a) to understand the nature of the charge; or

(b) to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) to understand that the proceedings are an inquiry as to whether the person committed the offence; or

(d) to follow the course of the proceedings; or

(e) to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) to give instructions to his or her legal representative."

34. Mr Eastman, in his submissions, refers to some consequences which may flow from an accused being unfit to plead. His submission refers to the following:

"(a) exculpatory evidence may not be brought forward.

(b) improper evidence may be admitted unchallenged.

(c) Other erroneous rulings of the Judge may go unchallenged.

(d) Witnesses may be inadequately cross-examined, or not at all.

(e) The accused's demeanour may negatively and unfairly influence the jury."

The fact, as the Director says in his written submissions, that those consequences do not necessarily follow such a finding, does not mean that the question of fitness to plead would necessarily not have significance for the finding of guilt in approaching the matter in the way that Wood J did in Anderson, Alister and Dunn.

35. The Attorney-General puts forward some expansive views as to scope of prerogative and statutory powers that the Executive might exercise consequential upon an inquiry under s 475. I was initially inclined to think that the inability to order a new trial and the inappropriateness of a pardon gave some force to the restrictive view that the Director takes of the provision. However, I do not now think that my construction of the section is truly assisted by the powers that are available to the Executive. The fact is that the conclusion in s 475 that "the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just" is not referrable to any particular power or restriction. In other words, the scope that the Executive has in disposing of the matter is not restricted by the legislation.

36. With this background, I approach the expression "any doubt of question arises as to his or her guilt" as a question of statutory construction. I note the beneficial construction interpretation that the provision should have so as to further and not frustrate the purpose evident in the legislation (Varley v Attorney-General (NSW) (supra) at 37 per Kirby P and 46 per Hope JA), but I recognise that the meaning of the words should not be unreasonably strained. In R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 687, Spigelman CJ observed:

"The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based."

Equally I do not regard the dictionary definition as a fortress protecting a restrictive view of its meaning (Spigelman CJ at 687).

37. Mr Buchanan's argument is founded upon the word guilt meaning the fact or state of having committed an offence. It is also at the forefront of Mr Buchanan's argument that the legislature in enacting s 383 and s 384 of the Criminal Law Amendment Act 1883 (NSW) clearly knew that "guilt" did not mean and cannot be read as "finding of guilt" and that is how I should define the word.

38. When it was first enacted, the predecessor to s 475 of the Crimes Act 1900, s 383 of the Criminal Law Amendment Act 1883, was in Part IX of the latter Act, the part that dealt with proceedings after verdict. It operated after a prisoner's conviction:

"... wherever ... any doubt or question arises as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein."

Accordingly, the provision deals with proceedings in the three described circumstances. It is concerned with the process of the trial.

39. Unlike s 475, s 383 is not punctuated. It is the punctuation in s 475 that attaches the words "in the case" to mitigating circumstances. If that punctuation is absent, it is not difficult to construe the section as referring to guilt in the case, as well as mitigating circumstances. It is now punctuated so as to make the three circumstances discrete that gives force to the Director's argument. The punctuation was not there in 1883.

40. In President &c. of the Shire of Charlton v Ruse [1912] HCA 33; (1912) 14 CLR 220 at 229-30, Isaacs J said:

"But although I am not prepared to discard wholly the punctuation of an Act, it would be unsafe to allow it to govern the construction."

Pearce & Geddes Statutory Interpretation in Australia, 5th ed, 2001, discusses a shift in approach by Australian courts and in some Interpretation Acts on the question (see para 4.44 at 126-127). Here the original enactment was without the punctuation which was apparently inserted on its re-enactment in the Crimes Act 1900 (NSW). I consider that I can construe the section as it was enacted in 1883.

41. In any event, Bennion, FAR, Statutory Interpretation, Butterworths, London, 1984, comments that "Punctuation is a device not for making meaning, but for making meaning plain". I am satisfied that in the case of s 475 the legislature plainly meant the "guilt" to which the section refers to mean guilt in the case so as to incorporate, in that notion, the finding that the jury gives as the verdict in the trial.

42. I also observe that in the context of the Criminal Law Amendment Act 1883, there were no real review procedures of the trial itself. The reservation of questions of law provided by s 422 of that Act arises only during the course of a trial. The procedure by writ of error provided for in s 427 of that Act went only to correct some defect in the proceedings apparent on the face of the record. It was a most inadequate procedure (Holdsworth, WS, A History of English Law, 5th ed,1931, pp 214, 215).

43. I find it difficult to see how the abstract notion of guilt would have been intended by the legislature in a remedial provision so linked to the trial itself. Mr Buchanan says it would have been:

"... very easy for the legislature to have repeated the word "conviction" and left the object of the doubt or question - and thus the subject of any inquiry at that."

But that is not the style of the provision. If it were, one would have expected the legislature to have used "sentence" as a synonym for "mitigating circumstances" but it did not do so.

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. As Hope JA remarked in Varley v Attorney-General (NSW) (supra at 410):

"As seems to appear from the Minister's speech, the mischief might not have been seen solely from the point of view of the convicted person. If a doubt or question arises because of an attack, and particularly an attack which is made public, upon a Crown witness, that witness may perhaps be seen to be the beneficiary of the inquiry as well as the convicted person. It may be that this is the reason for the inclusion in the section of the words "or any portion of the evidence therein" but I must confess I find them a mystery. It is hard to understand what an inquiry would be about if a doubt or question as to some evidence could not give rise to a doubt or question as to guilt or sentence_."_ [my underlining]

46. That underlined comment would seem to reinforce the notion that 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.

47. This construction of the section leads to a conclusion on all fours with the approach taken by Wood J in the Anderson, Alister and Dunn Inquiry and does not require a reconsideration or qualification of the other authorities to which I was referred. It follows that I do not think that the Chief Justice erred in law in deciding to direct an inquiry into the matter of the fitness to plead of David Harold Eastman during the whole or any part of this trial for the murder of Colin Winchester.

48. It also follows that the Director's application for an extension of time for the review of the Chief Justice's decision should be refused. It is unnecessary for me to comment on the proceedings taken by the Director for a declaration and injunction as the Director has failed to make out his case for the decision to be impeached for error of law.

49. I refuse to extend the time for making application for 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. I dismiss the applications for a declaration and injunction in respect of that decision.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

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

Solicitor for the Second Respondent: Mr K Holmes, ACT Government Solicitor

Solicitor for the Third Respondent: Australian Government Solicitor, ACT