Eastman v Australian Capital Territory [2013] ACTSC 184

Supreme Court of the ACT|2013-08-28|Before: Rares J

1. On 25 February 2013, I made an order in the nature of a writ of mandamus requiring the Australian Capital Territory to consider the application of the plaintiff, David Eastman, to release him on licence under s 295 of the Crimes (Sentence Administration) Act 2005 (ACT) in accordance with law: see Eastman v ACT Executive Australian Capital Territory [2013] ACTSC 53. In those reasons, I set out the then relevant portions of the statutory schemes and the facts relating to Mr Eastman's three applications for consideration of his being released on license that he had made, the first two to the AttorneyGeneral on each of 29 June 2009 and 2010, and the third to the Chief Minister on 29 June 2012.

2. Following that order, Mr Eastman made inquiries of senior officers of ACT Corrective Services as to whether the Executive had enquired of them for any update as to his suitability for release on license. On 18 April 2013, Mr Eastman filed an originating application seeking that the matter be listed so as to seek an order prescribing a time by which the Executive should decide his application. The application was heard on 13 May 2013 and it was accepted by senior counsel appearing for the Executive that no such inquiries had been initiated up to then. The evidence then suggested that the Executive anticipated that a decision would be made in relation to his request for release on license by Sunday, 30 June 2013.

3. In his application in the proceeding filed on 17 July 2013, Mr Eastman sought an order prohibiting the AttorneyGeneral from considering and/or deciding, as a member of the Executive, his application for release on license made under s 295. He contended that the AttorneyGeneral had exhibited the appearance of bias against the favourable consideration of that application.

4. In the course of argument today, Mr Eastman's counsel identified several circumstances as suggestive of why an objective observer of the administrative process, being his application for release on licence to the Executive, who is properly informed of its nature might think that the Attorney might not bring a fair and impartial mind to the making of the decision on it: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434-435 [28]- [29] per Gleeson CJ, Gaudron and Gummow JJ and Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at 235 [37] per Rares and Jagot JJ.

5. Mr Eastman relied on the following facts: First, the Attorney's rejection of Mr Eastman's three previous applications for release on licence on the basis that he would not refer them to the Sentence Administration Board under s 290 of the Act. As explained in my earlier reasons, the Attorney had proceeded on an incorrect appreciation of the nature of Mr Eastman's applications under s 295. Secondly, the Executive's apparent inaction in failing to comply with the order in the nature of a writ of mandamus until after the matter had been brought back to Court on 13 May 2013 at Mr Eastman's initiative. Thirdly, the AttorneyGeneral's actions after that time, being his requests made to ACT Corrective Services in letters, that are not in evidence, dated 16 and 17 May 2013, requesting information to assist the Executive to make its decision, and the Attorney's selection of affidavits concerning Mr Eastman, prepared by two officers of ACT Corrective Services, Mark Bartlett and Anthony Johnston in 2010 for that purpose.

6. Fourthly, he relied on a letter to him dated 5 June 2013 in which the AttorneyGeneral identified a significant number of issues that would be adverse to Mr Eastman and to which the Executive would have regard in making its decision. The letter attached 16 documents, including three decisions of the Administrative Appeals Tribunal given in 1982, 1984 and 1986, the decision of the High Court in 2000 dismissing Mr Eastman's appeal against conviction and a decision of this Court in 2011, together with the sentencing remarks of Carruthers AJ of 10 November 1995 in which his Honour sentenced Mr Eastman to imprisonment for life, and did not fix any parole period, the authorities apparently referred to in Carruthers AJ's sentencing remarks, the report of Miles AJ on an earlier inquiry into Mr Eastman's conviction in October 2006 under s 475 of the Crimes Act 1900 (ACT), two affidavits of Mr Johnston affirmed in July 2009 and July 2010, two affidavits of Mr Bartlett affirmed in January and July 2010, and the report of ACT Corrective Services dated 27 May 2013 responding to the AttorneyGeneral's letters of 16 and 17 May 2013.

7. The report of 27 May 2013 noted the 2010 affidavits of Mr Johnston and Mr Bartlett had been supplied to Corrective Services and stated that it would update the matters contained in those affidavits. It then proceeded to deal with Mr Eastman's activities and behaviours in the period between mid2009 and the time of the report. In essence, the report substantially confirmed Mr Eastman's assertions in his letter of 29 June 2012 as to his then current behaviours and matters that he considered relevant under s 293 of the Crimes (Sentence Administration) Act for the purposes of an inquiry by the Board. The report noted that, in essence, Mr Eastman's behaviour in the two or so prior years had significantly improved over earlier behaviours, and that he had the minimum security classification available to a person who had no parole period or release date set as part of his sentence. It noted that Mr Eastman's program involvement since he had come into custody at the Alexander Maconochie Centre, being the Territory's jail since mid2009, had been extremely minimal. But the report explained that was because he had no identified alcohol or drug issues and, although he was a potential participant in a program to address violence and had in April and July 2010 declined to be assessed for it, he indicated his willingness by September 2010 to do so. However, that program was suspended in November 2010 and was not, accordingly, available for him to participate in it. The report also stated that Mr Eastman's steadfast maintenance of his innocence was considered to make him unsuitable for that program and other programs that might deal with his rehabilitation.

8. The report noted that Mr Eastman appeared to have dedicated a large portion of his time to active work in a number of fields including, as a unit cleaner, but particularly as a literacy and numeracy assistant in education offered to international detainees with limited language skills, together with landscaping work and the creation by him of a Zen garden for the benefit of the Health and Admissions buildings in the Centre.

9. The report said that because Mr Eastman was currently classified as minimum 1, he could not be eligible to participate in external programs such as works release. That was because of a departmental policy that he needed a determinate sentence to do so, thus leaving him in a situation where he could not undertake rehabilitative programs offered to other prisoners because his life sentence had no fixed time for his release or eligibility for parole. The report concluded that if Mr Eastman were granted release on licence he would need sufficient time to complete and implement a comprehensive transitional release plan which the report estimated would take about 12 to 18 months.

10. In his letter to Mr Eastman of 5 June 2013, the AttorneyGeneral referred to the sentencing remarks of Carruthers AJ. His Honour had discussed the circumstances of the murder of Assistant Police Commissioner Winchester for which Mr Eastman was convicted, saying that the murder of a high public official was in the worst category of cases. His Honour considered that Mr Eastman should serve the maximum sentence provided by law.

11. The letter asserted that it was clear that the attached bundle of material demonstrated that Mr Eastman had suffered from a serious mental illness condition or disorder, leading to difficulties in his interpersonal relationships and had, for a very long period, displayed a cycle of behaviour resulting in a propensity towards anger and threats of violence, including threats to kill persons whom he perceived had treated him unfairly. The letter stated that when he had the opportunity, during a period when he had made a number of those threats, Mr Eastman had demonstrated a propensity to make repeated concerted and covert efforts to obtain a weapon. The letter expressed the view that it was evident from the sentencing remarks that a real concern remained about the risk to the community, based on his history and behaviour. The letter referred to a number of other aspects of the sentencing remarks and the fact that the Executive would consider the views expressed by the Winchester family. The letter said that the Executive would consider the views of that family. The letter stated that should he be released, there was nothing to indicate that he would not continue to pose a risk of harassment and, indeed, violence to that family and others in the wider community.

12. It referred to the fact that his conduct and participation in relevant activities in custody would be considered, noted that his conduct of late had improved, but observed that he had an extensive history of poor behaviour while in custody, and that he had been disciplined for intimidation, indecency, damage, destruction or defacing of his cell, abusive and insulting language and failure to comply with directions and assault. The letter asserted that the pattern of his behaviour in custody "appears to be consistent with the pattern of your behaviour in the community documented by [Carruthers AJ and Miles AJ] and confirmed in earlier and later reported decisions which are contained in the bundle of material".

13. The Attorney said that he understood that the recent improvement in Mr Eastman's conduct coincided with his present placement in the Health Centre at the jail and that this accommodation had been arranged to assist in managing significant association issues that he had with other detainees and, accordingly, gave him limited interaction with other staff and detainees at the jail. It noted that Mr Eastman had had limited or no participation in treatment or programs directed at addressing any illness, condition or disorder or his pattern of behaviour and ongoing risk to the community, and that he had been "reluctant to engage in some programs identified for you".

14. The letter said that the Executive would consider Mr Eastman's ability to comply with any conditions of his release, accepted that he had complied with his most recent bail order (presumably before his conviction) but said that the pattern of his behaviour before, during and his trial made it difficult to assess the extent to which he would be willing or able to comply with conditions that might be imposed on his release, and that his lack of interaction with other staff and detainees, and lack of involvement in therapeutic programs, made it even more difficult to determine any appropriate conditions or capacity to comply.

15. The letter said that the Executive would consider Mr Eastman's lack of acceptance of responsibility for the offence. It noted that his age of 67 years and the significant time spent in custody were special circumstances that might support his release on licence but that the Attorney did not believe that those could be determinative. It also noted that the Executive would consider the public interest, including whether it would be acceptable for the public for Mr Eastman to be released in circumstances where he had failed to take responsibility for the offence for which he was convicted and where "you may continue to pose a risk to the community of harassment or violence should you be released". The letter concluded by inviting Mr Eastman's comments by 21 June 2013 and offered him the opportunity to extend that time, which was taken up.

16. On 5 July 2013, Mr Eastman's solicitors responded with a detailed reply to the matters raised in the letter of 5 June 2013 and attached eight affidavits from Corrective Services officers and contractors who had regular, if not daily, dealings with Mr Eastman. All of those persons deposed that his behaviour in the previous approximately two years had raised no issues of concern for them, and that his contribution towards activities in the prison appeared to be helpful and appropriate.

17. Mr Eastman is concerned that in light of the history of the AttorneyGeneral's past handling of his applications for release on licence, his initial response to the order in the nature of mandamus of 25 February 2013, the limited information gathering attempts by him and contents of his letter of 5 June 2013, an objective observer might think that the AttorneyGeneral's participation in any decision by the Executive would be unfavourable to him.

18. During the course of argument I directed the parties' attention to aspects of the statutory scheme that were not previously relevant and which do not appear to have been at the forefront of either of their minds in relation to the present application. In particular, the main object of the Crimes (Sentencing Administration) Act as stated in s 6 is to ensure, as far as practicable, that sentences are given effect in accordance with that Act and the Corrections Management Act 2007 (ACT), the latter Act not presently being relevant. Significantly, s 7 provides relevantly:

"7 Treatment of sentenced offenders

(1) Functions under this Act in relation to a sentenced offender must be exercised, as far as practicable, as follows:

(a) to respect and protect the offender's human rights;

(b) to ensure the offender's decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment;

(d) to promote the offender's rehabilitation and reintegration into society.

(2) Also, functions under this Act in relation to an offender serving a sentence of imprisonment (whether by full-time or periodic detention) must be exercised, as far as practicable, to ensure -

(a) the offender is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;" (emphasis added)

19. In addition, the preamble to that Act states that the inherent dignity of all human beings, whatever their personal or social status is one of the fundamental values of a just and democratic society, and that the criminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 (ACT), and international law. The Human Rights Act relevantly provides that no one may be treated or punished in a cruel, inhuman or degrading way (s 10(1)(b)) and that anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person (s 19(1)). Importantly, s 40B(1) provided that it was unlawful for a public authority, including a Minister, to act in a way that was incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

20. There is in my view an issue as to whether the limitations on any rehabilitation programs available to Mr Eastman, by reason of his status as a prisoner with no determinate sentence or fixed parole date, conforms with the function under s 7(1)(d) of the Crimes (Sentence Administration) Act, namely the promotion of his rehabilitation and reintegration into society. Given the apparently significantly improved behaviour of Mr Eastman in the past two years it seems to me that one question which may well be relevant for consideration by the Executive, under s 295(1)(b) having regard to its functions under the Act and its obligations under s 40B of the Human Rights Act, is the promotion of Mr Eastman's rehabilitation and reintegration into society and to ensure so far as practicable, in accordance with s 7(2)(a), that he is not subject to further punishment in addition to deprivation of liberty only because of the conditions of his detention. Inaccessibility to rehabilitation programs because of the nature of his sentence may be a matter that needs to be addressed in that regard. Those issues are not presently before me but may well be significant or relevant for, among others, the purposes of the Executive's consideration of the application for release on licence, and the imposition of any conditions, under s 295 of the Crimes (Sentence Administration) Act.

21. Because the decisionmakers in this case are members of the Executive and therefore Ministers of the Territory, the Court does not approach the assessment of apparent bias in the same way as it would in cases of judicial officers or administrative tribunals, particularly those which are independent of the Executive. Gleeson CJ and Gummow J discussed the function of the Minister under a particular section of an Act in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 539 [102] saying:

"The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise."

22. I am of opinion that, despite differences in the statutory scheme here, similar considerations apply to an assessment of the appearance of bias in the performance by members of the Executive of the function of considering applications for release on licence. This is particularly so in cases such as Mr Eastman's, where the person concerned has been the subject of considerable and, indeed, almost constant, controversy in the public eye and in the Courts for many years preceding and subsequent to his conviction. It would be unrealistic to expect Ministers to have expressed or formed no public or other views about Mr Eastman, having regard to his engagement in disputes from time to time with members of the Executive, whatever the rights and wrongs of those matters may be.

23. The critical question in determining whether or not the AttorneyGeneral has given the appearance of bias must be assessed on the basis described by Hayne J, with whom Gleeson CJ and Gummow J agreed on this point (at 538 [100]), in Jia 205 CLR at 565 [187] when he said:

"Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker."

24. As his Honour pointed out, even in the case of an allegation of actual bias, preconceived opinions by a judge, although unfortunate if he or she has them, do not constitute, of themselves, such a bias or an expression of opinion because it does not follow that, in considering the case at hand, the evidence or arguments will be disregarded by the judge. Hayne J observed that a similar principle applies to allegations of apprehended bias through prejudgment (205 CLR at 564 [186]).

25. I have found this a difficult case to evaluate, particularly because of the way in which the AttorneyGeneral has approached the consideration of Mr Eastman's three previous applications and the reconsideration of his current one in consequence of the order in the nature of a writ of mandamus. That approach has an unfortunate appearance.

26. However, I am not satisfied that an objective observer or fairminded person would consider that the Attorney's mind is closed to consideration of the further material that Mr Eastman has put forward, or would be closed to having regard, if it is appropriate, to the statutory provisions to which I have drawn attention in these reasons that do not appear to have been the subject of prior consideration.

27. As the SolicitorGeneral pointed out in the course of argument, the AttorneyGeneral himself intervened in Mr Eastman's appeal against the decision of Marshall J that this Court had no power to consider a second application for an inquiry into Mr Eastman's guilt following his conviction. On 30 July 2012, after the latest of the applications under s 295 was made, and before he first purported to determine it, the Attorney intervened in that appeal to support Mr Eastman's argument that there was power to grant such relief: see Eastman v Marshall (2012) 7 ACTLR 37. While, as senior counsel for Mr Eastman pointed out, the Attorney's intervention in that case had a wider public interest aspect than Mr Eastman's personal circumstances, for it affected all persons who might seek a second inquiry into their convictions, the Attorney did not necessarily need to intervene. His intervention demonstrated that, despite his expressed concerns that Mr Eastman had not acknowledged his guilt, he was prepared to assist the Court in coming to a conclusion that a second inquiry into that very issue could be ordered, as has happened.

28. Significantly, the submissions made by Mr Eastman's solicitors and the affidavits they provided in support with their letter of 5 July 2013 seek to make a number of significant corrections to facts and address issues identified in the AttorneyGeneral's letter of 5 June 2013 that the Executive was then considering as being possibly adverse to Mr Eastman's claim.

29. While the case is close to the line, I am not satisfied that an objective observer or a fair-minded person might conclude that the AttorneyGeneral would not be open to persuasion by the fresh material provided by Mr Eastman, or by reason of any other matters that he may wish to address, having regard to my remarks in these reasons as to the other statutory criteria which the Executive, including the Attorney-General, if he is a party to the deliberations, will need to consider. In all the circumstances, I must dismiss the application in the proceeding.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Counsel for the Plaintiff: Mr M Griffin QC with Mr J Masters

Solicitor for the Plaintiff: Legal Aid ACT

Solicitor for the Defendant: ACT Government Solicitor

(Sentence Administration) Act 2005

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