Eastman v Besanko and The Attorney-General of the Australian Capital Territory [2009] ACTCA 23

Court of Appeal (ACT)|2009-10-22|Before: Graham JJ, Higgins CJ, Dowsett J, Penfold J

2. In this matter the Chief Justice made an order on 7 October 2009 which regulated the way in which the present appellant, Mr Eastman, was to be accommodated in the prison in which he is presently serving a life sentence for murder.

3. We stress that we accept that the fact that such an order was made is of some considerable importance for present purposes, particularly as his Honour made the order after considering a substantial body of evidence.

4. However the order expires at midnight tonight. Mr Eastman asks us to extend it until tomorrow. He says that his capacity to prepare the case will be adversely affected by interference from other prisoners, and possibly prison officers, if such an order is not made.

5. It is a serious step for a court to intervene in the way in which prisoners under sentence are dealt with in a prison. Serious security and safety issues may arise. It is not an area in which courts have any real expertise or experience.

6. Further, there are likely to be considerable difficulties in anticipating and dealing with the conduct of other prisoners. We have no doubt that the existing orders have caused difficulties for the prison system. However we accept that the Chief Justice considered that they were justified in the circumstances.

7. We accept that the Court has an inherent power to ensure that the administration of justice is not unduly impeded by the way in which a prisoner is being detained. As much appears from the decision in Johnson v Eastman [2009] ACTCA 8.

8. We should say something about the circumstances in which we find ourselves. The appellant was, this morning, represented by counsel who, economically and with considerable persuasiveness, dealt with a substantial number of the issues arising in this appeal.

9. We understand that counsel declined to deal with one issue which Mr Eastman wishes to raise, namely his assertion that the decision of Besanko J was infected by what is sometimes described as Wednesbury unreasonableness.

10. Notwithstanding counsel's unwillingness to deal with that matter, Mr Eastman wishes to do so himself. We have agreed that he should be allowed to do so. In so doing we have extended to him a considerable indulgence, given that he has been represented by counsel.

11. We propose to hear him and give appropriate consideration to the arguments which he wishes to raise in connection with that and any other matter.

12. He says that in order to make his submissions tomorrow, he needs an extension of the order previously made so that he will be uninterrupted in his preparation. We have some difficulty in accepting that assertion at face value, given that he has been actively involved in these proceedings for a very lengthy period of time, and this hearing date has been fixed for some considerable period of time.

13. We find it difficult to believe that a person with his familiarity with his case, and with the period of notice that he has had, is not fully prepared at this stage to go on with it. No doubt there are finishing touches to be added, but we see no reason to believe that his capacity to do so will be seriously impeded by the conduct of other prisoners.

14. We say that in light of an indication given to us by the Chief Executive of the relevant service, that there is no present intention to displace the arrangements which have been made pursuant to the Chief Justice's order. In those circumstances, we see no reason to become involved in the matter. We therefore decline to extend the order of the Chief Justice.

15. I agree. ... Justice Graham, you wish to add to the judgment?

16. I have had the advantage of hearing the reasons delivered by Dowsett J in respect of an oral application made by the appellant for a continuation of orders made by the Chief Justice on 7 October 2009 referable to his custody. Those orders were made on the basis that they would expire today, 22 October 2009.

17. The matter which is presently before the Court is an appeal in a civil matter under the Administrative Decisions (Judicial Review) Act 1989 (ACT).

18. The appellant complains that prison officers and fellow inmates have interfered with and are likely to interfere with the appellant's preparation of his case which was listed for hearing today, 22 October 2009, as a two day matter.

PENFOLD J: Mr Eastman, I'm going to invite Graham J to finish giving his reasons. If you interrupt again I will ask that you be removed and the reasons will be completed in your absence.

MR EASTMAN: Well, please, I request that it be delivered in my absence. I request leave to leave because I'm disgusted with the court and I'm not interested in hearing his reasons. I request leave to be excused.

PENFOLD J: All right, take Mr Eastman down, please.

MR EASTMAN: Thank you. The best thing I've heard all day long.

19. At about 4.04 pm today the appellant withdrew the retainers of his counsel and also of his solicitor. He commenced his proceedings in the Court which are the subject of this appeal by filing an application on 6 May 2008. The hearing of that application was heard before the primary judge on 7 and 8 July 2008 when the appellant presented his own arguments in support of the grounds relied upon for review of the respondent's decision.

20. It seems to me that the questions of contempt and interference with the course of justice may not properly be the subject of orders made by the court on the hearing of this civil appeal. It may be that the appropriate course to follow would be for a direction to be given to the registrar of the court to institute proceedings or it may be that it's appropriate for the police to institute proceedings in relation to the conduct of which the appellant complains.

21. Whatever the power of the Court may be in the circumstances of the case, it is clear that the Court ought not in my opinion in its discretion make any order such as that which has been sought. Counsel who has previously represented the Chief Executive of the Prison Service has indicated that the Chief Executive opposes an extension of the orders made by the Chief Justice on 7 October 2009. He has indicated that the Chief Executive is not disposed to give any undertakings to the Court in respect of the management of the appellant between now and the close of business tomorrow. However he has indicated that he will do his best to maintain the status quo as it was ordered by the Chief Justice on 7 October 2009.

22. In my opinion it would be entirely inappropriate for the Court in its discretion to make an order continuing the relief that has been granted.

23. I would dismiss the application for an extension of the orders made by the Chief Justice.

24. I will formally order then that Mr Eastman's application for an extension of the Chief Justice's order made on 7 October is refused.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: JG Renwick until approximately 4.04pm on 22 October 2009

Solicitor for the Appellant: Jackson Lalic Lawyers until approximately 4.04pm on 22 October 2009

The Appellant appeared in person from about 4.04pm on 22 October 2009.

Counsel for the Intervenor: JD Harris SC and DJC Mossop

Solicitor for the Intervenor: ACT Government Solicitor

Decisions (Judicial Review) Act 1989

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Judgment (33 paragraphs)

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