Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 50

2. The basis on which Mr Eastman claims that a neutral observer, in his words "a fairly well-informed neutral observer", would perceive me as biased, is somewhat intricate, and it is necessary to deal with it at some length.

3. At the last mention of this matter, a directions hearing on 17 February this year, Mr Eastman says that I said that I had "read all the papers". From this alleged comment, to which I shall return, he constructs the following argument:

(a) Penfold J stated on 17 February 2011 that she had read all the papers, therefore she knew that the defendant, when called upon by Teague AJ on 18 November 2010 to show cause why an order nisi should not be made, had produced only an unsigned document purporting to be an extract of transcript from 10 November 1995.

(b) Penfold J knew that such a document could not possibly amount to lawful authority for anybody's imprisonment, therefore she knew that the defendant, by his own default, had made out the case for an order nisi.

(c) A neutral observer would then have expected Penfold J to put the defendant on notice that, unless he could produce satisfactory proof of lawful authority, an order nisi would probably be made. A neutral observer would have perceived Penfold J's threat to summarily dismiss the plaintiff's application as defying all logic, and as being explicable only as an indication of her bias against the plaintiff.

4. In summary, Mr Eastman says a judge who had read all the papers must have known that the defendant had established the first matter that Mr Eastman was required to establish, thereby requiring the making of an order nisi in Mr Eastman's favour, and so a judge who in those circumstances did not put the defendant on notice that an order nisi was likely to be made would be perceived by a neutral observer, particularly a well-informed neutral observer, to be biased.

5. There are two appropriate responses to this submission.

6. The first is that any submission based entirely on unsubstantiated assertions about what a judge knew, let alone unsubstantiated assertions about what a judge knew as a result of inferences from other things that a judge is asserted to have known (again without substantiation), probably justifies immediate rejection without further discussion.

7. Apart from the general impossibility of knowing what is in anyone's mind at any time, the proposition that the law relating to any particular topic, and its application to any particular factual situation, are in every case unarguably clear to every judge, is obviously unsustainable.

8. If such were the case, there could only ever be one answer to any legal problem. There would be no need for judges to give reasons, indeed there might be no need for judges at all, and there would certainly be no need for appeal courts, because once the correct answer is pronounced, there could be no different views.

9. However it is relatively easy, if not quick, to deal with this particular submission on substantive grounds as well, and I propose to do so, although for that purpose it will be necessary to describe the background to these events in some detail.

10. Mr Eastman's current application for a writ of habeas corpus first came before Teague AJ on 18 November 2010. His Honour ordered the defendant to file written submissions by 2 December, and Mr Eastman to respond by 16 December, and he adjourned the matter to 17 December.

11. On 17 December, Teague AJ told Mr Eastman that his written submissions were not adequate, and sought to explain what he saw as the five obstacles to Mr Eastman succeeding in his application. Before Teague AJ reached the fifth obstacle, Mr Eastman asked his Honour to disqualify himself, and Teague AJ agreed, explaining that he was biased against Mr Eastman because of Mr Eastman's "outrageous conduct" in court. The matter was then listed in front of me to be heard today.

12. The purpose of the directions hearing set for 17 February was, among other things, for me to establish whether further submissions would be made in response to the matters that had been raised by Teague AJ. In the course of that directions hearing I mentioned twice that I had read the transcript of the earlier hearing before Teague AJ, and once that I had "read the documents". Those comments came during an exchange with Mr Eastman that is usefully quoted at length:

HER HONOUR: All right. So your first answer is you don't propose to reframe the arguments. Do you propose to put arguments against the points that have been made?

MR EASTMAN: Rather than these leading questions, can I tell you what happened with Teague J?

HER HONOUR: No, I read the transcript of Teague J's encounter with you.

MR EASTMAN: But it's just been mischaracterised to you what happened. His Honour invited - - -

HER HONOUR: That may or may not have been a mischaracterisation. I've read the transcript, Mr Eastman. The question is, do you propose to respond to the points - - -

MR EASTMAN: Your Honour, I will answer that question in the course of what I am about to tell you. His Honour asked for submissions from the defendant to be filed by a certain date. He asked for my response to be filed by a certain date. He then convened on whatever the date was.

MR EASTMAN: To consider the rival submissions. He didn't get very far with considering them before he recused himself. We got as far as the point that I had said, "I have an application in for legal aid. I'm hoping that if that's successful I can be professionally represented in this matter." That is still the situation. I am still hoping that legal aid can be granted. If, however, it is not - and there is no guarantee that it will be - I will be representing myself. Now I might fine tune my application. I might seek leave to amend a word here or there, I might want to put in, after I've had an opportunity, which I haven't had now for many weeks, to ring the people to get pro bono advice from on this subject and to research it, I might seek leave to put in supplementary written submissions in addition to those that I filed on whatever day.

But I'm certainly not going to agree that the application is misconceived or it's without any merit or so forth. I'm well aware the basis for habeas corpus. It's illegal detention. And I say that the paperwork that authorises the detention is, at this stage, defective. But we are - that's several tracks - several hurdles down the track. The problem at the moment is - - -

HER HONOUR: Well I don't know that it's that many hurdles down the track. All right, so on 11 March, depending whether or not you've got legal aid, you will be, as it were, making your application in the terms of the document. All right. Now I'm happy to warn you that at this stage if that's all that is in front of me, it seems likely that the application will be dismissed very quickly. But you can decide for yourself whether - - -

MR EASTMAN: Why do you say that, your Honour? You've heard no submissions?

MR EASTMAN: So you've agreed with the defendant already before the case has even been heard?

HER HONOUR: No, I haven't agreed with the defendant already, but what I have seen on the documents suggests to me, and I've said likely, I didn't say definitely, that the argument will not go very much further.

MR EASTMAN: Well I think your Honour should not pre judge it - - -

HER HONOUR: Indeed, and that is why I'm still leaving it in the list for 11 March. But I do not think - - -

HER HONOUR: I do not think there is anything else we can - - -

MR EASTMAN: Your Honour's only had summaries of argument, after all, and you are making a provisional finding - - -

HER HONOUR: Mr Eastman, you have been invited on several occasions to provide further submissions. You have made it very clear you have no intention of meeting any of the arguments that have been put. That is your prerogative.

HER HONOUR: I do not propose to hear any further for the moment. I will adjourn the matter now and we will be back on 11 March.

13. Whatever interpretation can fairly be put on my reference to having "read the documents", and whatever proportion of the total collection of documents on the file I had in fact read by 17 February, the file shows that at that point the efficacy of the document attached to the defendant's submissions filed on 1 December (being the transcribed sentencing remarks of Carruthers AJ), had not been challenged by Mr Eastman, either in written submissions or in transcribed argument. To the contrary, in his exchanges with Teague AJ on 17 December about the availability of a writ of habeas corpus, Mr Eastman had relied on simply rejecting the propositions of law put to him by his Honour as shown in the following exchange:

HIS HONOUR: ... Do you understand that what Mr Mossop has said, and which I believe clearly to be the situation, is that once on an application for a writ of habeas corpus the court has in front of it the documents supporting the lawfulness of the imprisonment, and here we have not only the reasons of Carruthers AJ, but all the other matters that follow from it, that that is a conclusive barrier to the issue of a writ of habeas corpus. Do you understand that that's what's put?

HIS HONOUR: But what I'm saying is once there's a document in front of me that says it's lawful, then it's not open to you to say well, I want to challenge the lawfulness of that on a writ of habeas corpus. It may well be in some other process but do you understand that that's what he's saying, and that you haven't dealt with that particular proposition, except to say "Well, I'm claiming it's unlawful".

MR EASTMAN: No, I didn't understand him to be saying that, I - - -

HIS HONOUR: Well, that's the law. You see, a writ of habeas corpus is a very rarely issued writ.

MR EASTMAN: ... I understood what you've just said is that you characterised his objection as being that if there is a document, however misconceived, which asserts a lawful basis for the detention of a prisoner, then the court - that's an absolute barrier to consideration of the issue by the court.

MR EASTMAN: Well, I believe that view is quite wrong and - - -

HIS HONOUR: Well, I need to have you show me the cases because there are a lot of cases which I'm satisfied make it clear that, in effect, if you put a warrant which shows it's a warrant of imprisonment in front of the court it makes it clear that that's the end of the matter. You can't get a writ of habeas corpus. Do you understand that that's the basic proposition? It's unchallengeable if the jailer, the master of the ship says here's my warrant that I'm acting upon, the court will say ...(indistinct)...

MR EASTMAN: Well, I submit that that's not what the law says that - - -

MR EASTMAN: If that were the law it would leave the gate open for forgery of documents, for fraudulent claims of authority to be submitted to the court and accepted without further enquiry because - - -

HIS HONOUR: All right, well the answer is that's what he's saying. You haven't addressed that point at all. Do you understand that?

14. Except for his reference to "a document, however misconceived", Mr Eastman did not identify any challenge to the document that is the transcribed sentencing remarks that had been provided by the defendant. Rather, he asserted that his written submissions had addressed the point raised by Teague AJ. In fact, in written submissions filed on 16 December, Mr Eastman did not challenge his sentence or its lawfulness, but relied on the sentence imposed by Carruthers AJ in making an argument that the changes in sentencing law made by the Crimes (Sentence Administration) Act 2005 (ACT) were invalid as they affected the sentence originally imposed on him.

15. In oral submissions, Mr Eastman asserted that in November 2010 Teague AJ had invited the defendant to "shut the door in his face" by producing lawful authority for his incarceration, and that on 17 December 2010 the defendant had "spectacularly failed to do so".

16. It is clear from the transcript extract that I have just read that Teague AJ did not consider that the defendant had spectacularly failed to do anything, and therefore there is no basis for saying that this alleged spectacular failure should have been obvious to me by 17 February this year.

17. Thus, it is clear that on the basis of the materials before me on 17 February there was no ground at all on which I could have found that the defendant, by producing the original sentencing transcript, had made out the case for an order nisi to be granted in Mr Eastman's favour, and no ground for giving the defendant the notice that Mr Eastman says "a well-informed neutral observer" would have expected me to give.

18. Mr Eastman referred in his oral submission as to what he called the threat of summary dismissal that I made on 17 February. I reject the characterisation of my remarks as a threat, rather than as a warning that on the material before me then, his case did not look strong. I am satisfied that the quoted exchange between myself and Mr Eastman, showing Mr Eastman's repeated refusal to make submissions in response to any of the arguments put against him, would have left a well-informed, neutral observer with an entirely logical explanation for the risk that Mr Eastman's application would be dismissed on the next hearing day, that explanation not being the bias of the judge.

19. Finally, in oral submissions, Mr Eastman raised a new matter, namely my alleged treatment of his application for an adjournment, based on the delay in receiving a final answer to his legal aid application. The application for an adjournment, based on the legal aid issues, was not addressed at the directions hearing on 17 February, and indeed has still not been heard, and so it is entirely misconceived to identify an alleged failure to grant an adjournment based on legal aid delays as indicative of bias.

20. Accordingly, the basis of Mr Eastman's application for me to disqualify myself is not made out, and I decline his application.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.