Supreme Court of the ACT|2012-12-21|Before: Teague J, Commissioner Colin

Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189 (21 December 2012)

DAVID HAROLD EASTMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

[2012] ACTSC 189 (21 December 2012)

JURISDICTION, PRACTICE AND PROCEDURE - Adjournment - application for adjournment pending final decision on legal aid application - legal aid application made after habeas corpus application made - legal aid refused, and refused on review, but final consideration deferred while legal aid authority approached Attorney-General about law reform proposal - application for adjournment based on difficulties of preparing for hearing in prison - hearing originally scheduled for before prison difficulties began - applicant had filed submissions and submissions in reply, and had indicated unwillingness to revise submissions, before seeking adjournment - adjournment refused.

Supreme Court Act 1933 (ACT), dictionary

Court Procedures Rules 2006 (ACT), rr 3502, 3503, 3506, 3507

Crump v NSW [2012] HCA 20

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

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant) [2002] UK HL 46

Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478

R v Secretary of State for the Home Department, Ex Parte Doody [1993] UKHL 8; [1994] 1 AC 531

CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY Defendant

(a) The application for an adjournment is refused.

(b) The application for Penfold J to disqualify herself is refused.

(c) The application for a habeas corpus order is dismissed.

(d) The plaintiff is to pay the defendant's costs.

1. Assistant Commissioner Colin Winchester of the Australian Federal Police was shot dead in Canberra on 10 January 1989. David Eastman was found guilty of his murder in November 1995 and sentenced to life imprisonment. Since then, there have been a number of appeals and other applications made in relation to Mr Eastman's conviction, but to date the conviction stands.

2. On 3 November 2010 Mr Eastman filed an originating application seeking the issue of a habeas corpus order directed to the defendant (then the Chief Executive of the Department of Justice and Community Safety but now the Director-General of the Justice and Community Safety Directorate). He further sought that, on the return of the habeas corpus order, the Court would receive further evidence from him in support of his application for release from custody, would allow the defendant to show cause why he (Mr Eastman) should not be released from custody, and then, if the Court considered that his custody was unlawful, order Mr Eastman's release.

3. In connection with that habeas corpus application, Mr Eastman has made oral applications relating to his treatment at the Alexander Maconochie Centre (AMC). He has also made other interlocutory applications.

4. This judgment deals with four discrete matters, being the habeas corpus application itself, an application for the hearing of the application to be adjourned until Mr Eastman's application for legal aid had been finally dealt with, an application for orders directed to those responsible for running the AMC, and an application made right at the end of the hearing for me to disqualify myself (not to be confused with an application for me to disqualify myself made earlier in the proceedings and dealt with in David Harold Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 50 (the first disqualification decision)).

5. Mr Eastman's application 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.

6. 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 on 11 March 2011.

7. At a directions hearing set for 17 February 2011, I asked Mr Eastman whether further submissions would be made in response to the matters that had been raised by Teague AJ. He indicated, in comments quoted at length in the first disqualification decision at [12], that he was generally satisfied with his original submissions.

8. On 11 March, when the matter was listed for hearing, Mr Eastman made an application that I disqualify myself from hearing the proceedings, which I declined to do (see the first disqualification decision).

9. Mr Eastman then sought an adjournment of the habeas corpus matter, essentially on the ground that he had applied for legal aid and was still awaiting a final response to his application. Matters relating to Mr Eastman's health and his accommodation and treatment at the AMC were also mentioned. Detailed submissions about the content and strength of the substantive case were made in the course of the adjournment application. In the end I refused the adjournment application and made orders permitting the parties to file further written submissions to supplement the oral arguments already made. Reasons for refusing the adjournment application are at [74] to [102] below.

10. Under the Court Procedures Rules 2006 (ACT), the Supreme Court no longer issues writs of habeas corpus (r 3502). Instead, the same relief may be given by an order "in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules" (r 3503(2)). The powers of the court in dealing with a habeas corpus application are set out in r 3506(1) as follows:

(1) On the hearing of an application for a habeas corpus order, the court may -

(a) order the release or other disposition of the person in custody; or

(b) order the issue of a habeas corpus order directed to the defendant and to anyone else and give directions about the course to be taken under the habeas corpus order; or

11. Because Mr Eastman was still waiting for a possible more favourable response to his application for legal aid (despite two refusals), he ostensibly refused to argue his substantive grounds. However, the original grounds, as well as a ground that emerged in the course of argument, were the subject of extensive oral argument in the context of consideration of whether he had a reasonably arguable case such as to justify an adjournment until he could have his argument put by a lawyer funded by Legal Aid ACT. When I refused the adjournment application (at [9] above), Mr Eastman then refused to make oral submissions on the habeas corpus application as such. I have considered Mr Eastman's substantive arguments as put in support of his application for the adjournment and as put in written submissions filed by leave after the hearing concluded.

12. Mr Eastman's habeas corpus application was, in the course of argument, based on three grounds:

(a) That his continued imprisonment is, presumably since at least 2009 when the Executive refused an application for release on licence, authorised only by that refusal, and that the conferral of such a power on the Executive by pt 13.1 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) is invalid on the authority of Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant) [2002] UK HL 46 (Anderson).

(b) That Carruthers AJ would not have sentenced as he did if his Honour had realised the true repository of the power to release on licence.

(c) That no adequate authority for Mr Eastman's continued imprisonment has been shown by the defendant.

13. The application must be dismissed unless Mr Eastman has a reasonably arguable case, sufficient to justify the making of a habeas corpus order requiring the defendant, in effect, to demonstrate why Mr Eastman should not be released (r 3507). The first ground relied on in the application was raised in Mr Eastman's original application. The second and third grounds were raised in submissions dated 3 March 2011. Although Mr Eastman made no formal application for leave to amend his original application, I have considered whether those second and third grounds as argued on the adjournment application could provide a reasonably arguable case for the making of the habeas corpus order.

1. Sect. 295 of the A.C.T Crimes (Sentence Administration) Act 2005 is invalid, because it purports to vest in the A.C.T. Executive what is in effect a judicial power, namely the power to release a life prisoner on licence any time after having served 10 years (see unanimous judgment of the House of Lords, British Parliament, in the case of Regina vs. Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant), dated 25-11-02).

2. Since this is a judicial power, it can only be exercised by the Supreme Court, which possesses it by virtue of its inherent jurisdiction.

3. In view of all the circumstances, including the Plaintiff's virtually clean previous record, the 15 years he has now served, the harsh conditions in which he has been held for the majority of that time, his current age of 65, and the absence of any evidence that he would be a danger to the community, it is appropriate that the Court order his release on licence.

15. Section 295 of the Sentence Administration Act is contained within pt 13.1, which is set out in the Appendix to this judgment.

16. In summary, if an offender sentenced to life imprisonment has served at least 10 years of his or her sentence, the Attorney-General may ask the Sentence Administration Board (SAB) to recommend, and if so the SAB must inquire, whether the offender should be released on licence. Sections 291 and 292 relate to the conduct of the inquiry. Section 293 provides that the SAB may only recommend the release of an offender on licence if it considers, having regard to the public interest as the most important principle but also to a range of matters specified in s 293(2), that the offender's release is appropriate. Section 294 requires the SAB to make a written recommendation to the Executive whether the offender should be released on licence. If the SAB recommends release, it may specify conditions of that release, and if it recommends against release, it may make other recommendations, for instance about when the offender's release might appropriately be re-considered.

17. Under s 295, the Executive, having received a recommendation from the SAB, must consider that recommendation and anything else it considers appropriate, and may grant or refuse to grant a release or licence. There is no requirement for the Executive to act in accordance with any of the SAB's recommendations.

18. The UK case of Anderson related to a somewhat different and very specific legislative scheme; the scope of the case was described by Lord Bingham of Cornhill at [1] as follows:

1. This appeal concerns the sentencing, punishment and detention of adults convicted of murder in England and Wales and, in particular, the power now exercised by the Home Secretary to decide how long they should spend in prison for purposes of punishment. The question arises, as one of law not policy, whether that is a power which, compatibly with the European Convention on Human Rights ("the convention"), the Home Secretary may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded. This opinion is concerned only with adults convicted of murder in England and Wales (whom I shall call "convicted murderers") save where express reference is made to other classes of offender or other jurisdictions.

19. Since 1965, there had been in the United Kingdom a mandatory life sentence for murder, which was quite distinct from the discretionary life sentences available for some other offences, described in R v Secretary of State for the Home Department, Ex Parte Doody [1993] UKHL 8; [1994] 1 AC 531 (Doody) by Lord Mustill at 550-551:

There is, however, another form of life sentence, of which the philosophy, statutory framework and executive practice are quite different even though the words pronounced by the judge are the same. This is the discretionary life sentence. The imposition of this sentence is severely constrained by section 2(1) of the Criminal Justice Act, 1991, read with section 1(2), and by decisions of the Court of Appeal (Criminal Division), notably Reg. v. Hodgson (1967) 52 Cr. App. R. 113 and Reg. v. Wilkinson (1983) 5 Cr. App. R. (S) 105. Where the criteria so established are satisfied the judge has a choice between two very different procedures. He may decide to focus on the offence, passing a sentence appropriate to its gravity by the familiar process of identifying the range of sentences established through decisions of the Court of Appeal as being in general apposite to an offence of the kind in question, and then placing the individual offence within (or exceptionally outside) the range by reference to circumstances of mitigation or aggravation. The judge may however think it right to adopt a different approach, and to concentrate on the offender rather than the offence, imposing a sentence of life imprisonment to reflect his appraisal that even a long fixed term of years may not adequately protect the public against the risk that when the term has been served the prisoner will continue to be a danger to the public. Such a sentence ensures that the prisoner will be kept in custody until it is thought safe to release him.

20. As noted by Lord Bingham, Anderson concerned only mandatory life sentences.

21. In 2002 when Anderson was decided, the power to release a convicted murderer on licence had been most recently conferred by s 29 of the Crime (Sentences) Act 1997 (UK) on the Home Secretary. The power was exercisable on a recommendation by the Parole Board made on a referral by the Home Secretary and after consultation with the Lord Chief Justice, and the trial judge if available.

22. However, the real issue in Anderson was an earlier part of the process that applied where a person was sentenced to a mandatory life term. Shortly after the sentence was imposed, the Home Secretary, acting on advice from the trial judge and the Lord Chief Justice, and from departmental officials, would set a "tariff" (being the appropriate punitive term of imprisonment). The Home Secretary had not always accepted the judicial recommendation as to the appropriate tariff. In due course, as the convicted murderer approached the end of the "tariff" term, the Parole Board considered whether his or her continued confinement was necessary for the protection of the public. If that continued confinement was necessary, the Home Secretary had no power to release. If the Parole Board recommended release on licence, the Home Secretary could, but was not obliged to, order the convicted murderer's release. There had been public statements that the need to maintain public confidence in the criminal justice system would also be considered by the Home Secretary, but it appeared that such consideration had never been relied on.

23. The Law Lords held that the Home Secretary's function in fixing the tariff (rather than the subsequent decision whether to release the offender after the end of the tariff period) was "a classical sentencing function" and that accordingly its performance by a member of the executive rather than "an independent and impartial tribunal" breached the guarantee in Article 6(1) of the European Convention on Human Rights which provides:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

24. Section 21(1) of the Human Rights Act 2004 (ACT) is in similar terms:

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

25. There are several difficulties for Mr Eastman in making good the argument set out at [14] above.

26. The first is that, as noted, what the House of Lords found was a judicial function was not the function of deciding whether to release a prisoner on licence but the function of fixing the period during which the prisoner could not be released on licence.

27. Except where a life sentence is imposed, a sentencing court generally sets both the maximum sentence to be served and any non-parole period (see, for instance, s 65 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act); the decision whether to release an offender after the non-parole period has been served is generally conferred on an administrative authority often designated as a Parole Board or, in the ACT, the Sentence Administration Board; such authorities are sometimes, but not always, headed by judicial officers, but the functions of a parole board are not regarded as necessarily judicial.

28. The power being exercised by the Home Secretary in fixing a tariff in the circumstances arising in Anderson was in relevant respects equivalent to the power exercised by a judge in setting a non-parole period; the power later available to the Home Secretary, to determine whether an offender should be released after the tariff period had been served, was relevantly equivalent to the power exercised by a Parole Board or Sentence Administration Board.

29. There are no mandatory life sentences for murder under ACT law. Several offences, including murder, carry maximum penalties of imprisonment for life (eg Crimes Act 1900 (ACT), s 12), but this does not exclude the imposition of a sentence of imprisonment for a term of years, with a specified non-parole period (Sentencing Act, s 32(1)). In the ACT, the arrangement for prisoners serving life sentences differs from both the UK arrangement for prisoners sentenced to mandatory life sentences (as considered in Anderson) and the ACT arrangements for prisoners serving sentences with fixed maximums (ie not life sentences); the "tariff" or "non-parole" period for life sentences imposed in the ACT (that is, the period to be served before release can be considered) is fixed not by a judicial officer or by the executive, but by the legislature, which has specified a minimum period of 10 years. The executive, like the Sentence Administration Board for prisoners subject to a non-parole period, may only release a prisoner after he or she has served that specified minimum term.

30. Thus Anderson, in identifying a flaw in a structure under which the Home Secretary fixed a "tariff" for a prisoner subject to a mandatory life sentence, has nothing to say about whether the power to release a prisoner who has served a specified part of his or her sentence (a power routinely exercised by the executive in relation to non-parole periods) is in fact a judicial function that cannot be exercised by the executive. Nor does it say anything about an arrangement under which a standard minimum term for prisoners subject to life sentences is set by the legislature.

31. No doubt release on licence is different in important respects from release on parole. However, if there is an argument that a decision whether to release on licence (in contrast to a decision whether to release on parole) is a judicial rather than an administrative function, it was not considered in Anderson. Anderson may reflect a principle that the setting, for an individual prisoner, of a minimum period to be served before release can be considered is solely a judicial function. I do not see that Anderson suggests (and nor has Mr Eastman made this submission) that setting a generally applicable minimum period (that is, not by reference to the circumstances of particular offending or a particular offender but for all offenders in a specified class) is beyond the power of the legislature.

32. Despite the expansion in recent years, in various Australian jurisdictions, of legislation requiring "mandatory sentencing" in various forms, no cases were drawn to my attention in which it had been held that a legislature could not validly impose such constraints on the judicial function of sentencing offenders as individuals.

33. In Crump v NSW [2012] HCA 20 (Crump), all members of the High Court upheld the validity of s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW). Mr Crump had initially been sentenced to life imprisonment with no non-parole period for a murder and for a conspiracy to murder. Under subsequent legislative changes, a judge set a minimum term of 30 years and an additional term of the remainder of Mr Crump's natural life. Section 154A, enacted as part of further legislative changes, imposed major restrictions on the capacity to release on parole a person in a class that included Mr Crump. The three judgments given in the case all noted that legislative changes to the operation of parole systems were always possible during the term of a sentence imposed by a judge, and that the setting of a non-parole period by a judge did not create any right or entitlement to release before the expiration of the whole of the head sentence.

34. None of the Justices in Crump addressed the question whether a legislature has power to detract from or alter the operation of a judicial order; Heydon J referred to Mr Crump's raising of that question (at [68]) only to conclude (at [71]) that it did not need to be decided because the legislation in question did not purport to alter either the minimum or additional terms specified for Mr Crump by the judge.

35. Furthermore, it is not clear that the legislative provisions challenged by Mr Eastman are in any sense a constraint on the exercise of the judicial sentencing power in the ACT situation, where there is no mandatory life sentence but only a life sentence as one choice open to the sentencing judge, who might equally choose a specified term of years and a specified non-parole period (Sentencing Act, s 32(1)).

36. In summary, Anderson does not say, as Mr Eastman argues, that the power to release a prisoner on licence is a judicial power; it says that the power to make a discretionary determination of the period after which a particular prisoner may be considered for release on licence is a judicial power rather than an executive power. Nor does Anderson say that it is not a legislative function to make a generally applicable determination of the period after which prisoners in a particular class, for whom no non-parole period has been set, may be considered for release.

37. A successful challenge to the legislation giving the Executive power to release on licence a person serving a life sentence (pt 13.1 of the Sentence Administration Act) would not be of any forensic benefit to Mr Eastman. A finding that s 295 of that Act was invalid as conferring judicial power on the Executive would simply eliminate the scope for the Executive to grant a release on licence under that provision. A declaration that the relevant legislation was incompatible with s 21 of the Human Rights Act in conferring that power on the Executive would only require the Attorney-General to bring the declaration of incompatibility to the attention of the Legislative Assembly (s 33, Human Rights Act). Neither a finding of invalidity nor a declaration of incompatibility, as such, would seem to operate to confer the power to grant such release on a judicial officer, or to establish, as Mr Eastman argues, that the power to release on licence a person who has been sentenced to life imprisonment is within the inherent jurisdiction of the Supreme Court.

38. Furthermore, an application for discretionary release, in the exercise of the inherent jurisdiction of the Supreme Court, on grounds specific to the applicant and raising similar issues to those that would be relevant in a sentencing process, is not properly part of a habeas corpus application which claims a right to release from unlawful imprisonment.

39. Thus, Mr Eastman finds himself obliged to argue that whatever the validity of his original imprisonment (a matter as to which he has raised separate questions), his continued detention is only authorised by the Executive's 2009 refusal to release him on licence. Therefore, Mr Eastman says, if the conferral of such a power on the Executive is invalid, an invalid refusal is all that is keeping him in custody, and his custody must be unlawful (hence the habeas corpus application).

40. On further analysis, it is apparent that this argument has no substance.

41. Whatever the initial basis for Mr Eastman's incarceration for life (which he conceded for the purposes of this argument was valid), it is hard to see how that basis could be undermined by the existence of a provision empowering a particular authority, after a specified period has elapsed, to consider his release; it might be different if the provision specified that he would be released at a particular point unless the authority determined that he should be kept in custody.

42. In any case, if Mr Eastman were correct in saying that the provision for the Executive to consider and grant or refuse release on licence is invalid because it purports to confer a judicial power on the Executive, then the effect of that invalidity must be that there is no qualification affecting the basis of his original and continuing incarceration. It seems unlikely that a failed attempt to confer power to release on licence, and the resulting absence of any power to ameliorate the effect of the sentence, would result in a failure of the power to incarcerate a prisoner at all for a properly imposed sentence, and certainly no such argument was made explicit.

43. Shortly after the hearing in this matter was adjourned and leave was given for the making of further submissions, Mr Eastman received a copy of the opinion sought by Legal Aid ACT as mentioned at [83] below. He attached that opinion to submissions filed, by leave, on 16 May 2011. Mr Eastman's submission noted counsel's opinion "that there is a serious doubt about the validity of Chapter 13 of the Crimes (Sentence Administration) Act 2005, on several grounds", and said that the Legal Aid Commission had recommended that the law be changed. Mr Eastman relied on counsel's opinion not directly in support of his habeas corpus application but in support of his request for an adjournment, on the basis of a claimed indication that the Legal Aid Review Committee would reconsider his application for legal aid if the approach to the Attorney-General to change the law was not successful.

44. The defendant did not address the substance of counsel's opinion in its reply filed on 30 May 2011, merely noting that even if Chapter 13 of the Sentence Administration Act is invalid, this would not render Mr Eastman's continuing detention invalid. Given that neither party sought to make further submissions on the habeas corpus application in reliance on the opinion, I considered that there was no need to invite or permit further argument by reference to the opinion.

Carruthers AJ's error about of the location of the Royal prerogative

45. A copy of the sentencing remarks of Carruthers AJ delivered on 10 November 1995 was provided to the Court annexed to submissions made by the defendant filed on 1 December 2010. His Honour said:

It is convenient, however, if I first refer to the relevant legal framework so far as the imposition of the sentence of life imprisonment in the Australian Capital Territory is concerned.

No question arises of the imposition of a non-parole period by reason of sub-s.7(2)(d) of the Parole Act 1976.

The service of a life sentence imposed by the Supreme Court of the Australian Capital Territory is subject to the exercise of the Royal prerogative of mercy. Section 72 of the Australian Capital Territory (Self-Government) Act 1988 provides:

"Before tendering any advice to the Governor-General in respect of the exercise of the Royal prerogative of mercy in relation to an offence against an enactment or subordinate law, the Commonwealth Minister shall consult with the Chief Minister and consider any comments given by the Chief Minister."

"The Commonwealth Minister" means the Minister of State administering that Act and has the additional meaning given by s.19A of the Acts Interpretation Act 1901. The Chief Minister is, of course, the Chief Minister for the Territory.

The exercise of the Royal prerogative of mercy includes the power to release a prisoner serving a life sentence upon conditions which would allow recall: see Kelleher v. The Parole Board of NSW [1984] HCA 77; (1984) 156 CLR 364. Hence, as Sugerman JA pointed out in Kocan (at 567), a sentence of life imprisonment is spoken of as a more merciful sentence than a long fixed-term sentence and its flexible character is emphasized. (See also (1965) Crim. L.R. at 694.)

46. Carruthers AJ was in error in relying on s 72 of the Australian Capital Territory (Self-Government) Act 1988 (the Self-Government Act), because that provision had earlier been repealed by the Arts, Environment and Territories Legislation Amendment Act 1993 (Cth) (Act No. 6 of 1994). That amending Act also inserted s 37(d) into the Self-Government Act, as a result of which s 37 read as follows:

(a) governing the Territory with respect to mattes specified in Schedule 4;

(b) executing and maintaining enactments and subordinate laws;

(c) exercising such other powers as are vested in the Executive by or under a law in force in the Territory or an agreement or arrangement between the Territory and the Commonwealth, a State or another Territory; and

(d) exercising prerogatives of the Crown so far as they relate to the Executive's responsibility mentioned in paragraph (a), (b) or (c).

47. Schedule 4 of the Self-Government Act (headed "Matters concerning which the Executive has power to govern the Territory") in turn refers to a wide range of matters including, relevantly:

MR EASTMAN: So, we're on the last page of that document. The first thing that I've referred to was, the judge clearly made a serious error in his sentencing remarks. He thought a section existed in the Act, which in fact had been repealed almost two years earlier, and he was unaware that the prerogative of mercy, as a result of that amendment and repeal, was no longer exercisable by the Governor-General, but in fact by the ACT Executive, and he might have thought long and hard about the desirability of having my fate, as a political football, in the hands of the local town council, as opposed to having the consideration of the relatively dispassionate Governor-General, he might not have sentenced in the way that he did.

HER HONOUR: The Governor-General was acting as the Executive too. I mean, the Governor-General doesn't get to be dispassionate about these things, the Governor-General does what he or she's told.

MR EASTMAN: There's a huge difference, with respect. An application to the Governor-General for the prerogative of mercy, under the law as it was before the amendment on 18th of - 1994, restricted the involvement of Jon Stanhope, or whoever the Chief Executive was, to a mere consultative role, with the relevant Commonwealth minister, the minister administering the ACT Self-Government Act and that Commonwealth minister would be providing advice to the Governor-General.

HER HONOUR: Still Executive advice, it's just a different Executive.

MR EASTMAN: Yes. But the Governor-General gives it some thought, I would think. He may act in accordance with advice most of the time, but in any case I'd feel a lot safer in the hands of a Commonwealth minister than in a collection of town councillors who call themselves the ACT government.

HER HONOUR: But I don't think that that changes the legal position, the fact that you may feel safer with a Governor-General than - - -

MR EASTMAN: But your Honour, surely you can see the point that I'm making. The judge sentenced on a serious factual misapprehension of law. He, in deciding to opt for a life sentence, rather than a determinate sentence, he specifically referred to the flexibility and the mercifulness of a life sentence, as opposed to a determinate sentence. Now he did that in the expectation that that prerogative and mercy would be exercisable by the Governor-General on the advice of a Commonwealth minister.

Had he known that in fact it would have been, not just a consultative role, but as a result of these amendments to the Acts, section 37(d) actually transferred the exercise of the royal prerogative to the ACT Executive. The local government in city in which this case had been the subject of sensational publicity for years. You have a government composed of really just a glorified town council, with 17 members, suddenly entrusted with exercising, if you please, the venerable royal prerogative of mercy. That's a situation that was a serious deterioration for me and put me in a far more vulnerable position of being political football, and rather than of objective consideration of my case, and I don't believe that Carruthers J would have sentenced in the same way had he been aware that that provision had been dramatically changed.

HER HONOUR: And that issue's never been raised before, hasn't it?

MR EASTMAN: I'm never aware of it, until I got this document recently and began going through it in detail to see what authority, if any, it could provide for my current imprisonment.

MR EASTMAN: I have, but I have no reason to go through them in great detail. I saw them years ago, but I was examining that document carefully to see whether it could constitute lawful imprisonment - authority for lawful imprisonment in 2011 and it was in the context of doing that, that I start to research everything that his Honour had said. And I uncovered that he was clearly mistaken as to that provision, it had ceased to exist almost two years previously. But if I may move on.

I notice your Honour looking at the clock and I don't want to run out of time if I can complete my submissions today. The original sentence was further invalidated or complicated in that on 2 June '06, the same day on which the Crimes (Sentence Administration) Act came into force, there was a very significant change in relation to the statutory equivalent of the royal prerogative of mercy, which is called the Release on Licence.

Until that date, the Governor-General had continued to retain, in respect of ACT prisoners, a power under section 8A of the Commonwealth Removal of Prisoners Act, to exercise licence in respect of ACT prisoners, and that could be granted if the Governor-General saw fit, at any time. It could be granted the day after they were sentenced, if he saw fit to do so.

As a result of the amendments that came into force on 2 June '06, there were two significant changes; the exercise of the grant of licence in respect of ACT prisoners, was transferred from the Governor-General to the ACT Executive, and for the first time, a 10-year time limit was imposed, with no exemption that that not have retrospective effect.

So under the previous power, the Governor-General could grant release on licence to any ACT prisoner, at any time during their sentence. As a result of the amendments, the ACT Executive inherited the power and was only prepared to grant it after a person had served 10 years.

49. There is no suggestion that Carruthers AJ purported to exercise a power that he did not have, or to exercise a power in a way that was not available to him, so I cannot see that the error could have vitiated his sentence.

50. The argument goes no further than the suggestion that his Honour might have exercised his sentencing discretion differently if he had correctly understood the legal framework in relation to how the power to release on licence might ultimately be exercised. As such, it might be an available argument in an appeal against sentence, but does not seem to have any significance in an application for habeas corpus made years after the expiration of the period within which the sentence could be appealed.

51. It should also be noted that even if Carruthers AJ, for reasons of the kind put by Mr Eastman, had preferred not to entrust the discretion to release Mr Eastman on licence to the ACT Executive, his Honour's only alternative would have been to impose a term of years, possibly with a non-parole period. There is, as far as I can see, no basis for assuming that any such term, or any such non-parole period, would have been shorter than 10 years, or shorter than the period that Mr Eastman has already served, or that Mr Eastman would at any particular point have persuaded the SAB to grant him parole (although it may be relevant having regard to Mr Eastman's comments about being a political football that the SAB has direct power to grant parole rather than only power to make a recommendation to the Executive as it currently does in relation to release on licence).

52. There is no substance, in the current application, in Mr Eastman's argument about Carruthers AJ's error about the repository of the power to release on licence.

53. In his final written submissions, Mr Eastman consolidated the two arguments dealt with above (relying on Anderson and on Carruthers AJ's error about the repository of the power to release on licence) as follows:

The Supreme Court must make a habeas corpus order if not satisfied that I am being imprisoned legally. It cannot be thus satisfied, if by now I ought to have been released on licence. The body nominally empowered to make a decision to grant, or to refuse to grant, the release on licence, namely the A.C.T. Executive, cannot act, because the whole of Chapter 13 of the Crimes (Sentence Administration) Act 2005 is ultra vires. This is due to violations of the separation of powers doctrine, the non-retrospectivity of sentencing principle, the Kable principle, and the Human Rights Act. Furthermore, the original sentence was based on a false premise about the state of the law regarding the Royal prerogative of mercy. This series of legal errors has rendered the entire mechanism for the administration of my sentence unworkable. Because the issue is the liberty of the subject, this situation cannot be allowed to continue. The Supreme Court has inherent jurisdiction to act, and must do so. I ought to have been released on licence by now, because, even if I were guilty, which I am not, I have served sufficient time to meet the requirements of retribution and general deterrence, and I am not a danger to the community. Therefore, my continued imprisonment is unlawful, and the Court must grant the order sought.

54. These submissions do not advance Mr Eastman's argument.

55. Mr Eastman also says that his current detention is unlawful in that it is not properly authorised as required by ACT law. The argument based on the lack of proper authority for his imprisonment emerged, in the course of argument, from the defendant's initial response to the habeas corpus application. In his final written submissions, Mr Eastman summarised his argument as follows:

There is no committal order or warrant of imprisonment. ... The defendant conceded that no warrant for my imprisonment exists, but claimed that the transitional provisions of the Act do not require it. This claim is false. Additionally, there is no "court order for the sentence", in the sense of sect. 330(2)(b), in existence, and hence nothing which can be taken as a committal order. The documents put forward by the Defendant completely fail to meet these requirements. The documentary authorisation of imprisonment provided for under the Act must be strictly interpreted. Hence, my imprisonment is unlawful.

56. During Mr Eastman's application for an adjournment, the following documents were tendered:

(a) A certificate dated 31 March 1999 and signed by Jill Circosta, Deputy Registrar, certifying that on 3 November 1995 Mr Eastman was found guilty in the Supreme Court of one count of murder, on 7 November 1995 a conviction was recorded, and on 10 November 1995 "it was adjudged that the said prisoner be imprisoned for life".

(b) A certified copy of a "Warrant of removal on a conviction where the punishment is by imprisonment", dated 10 November 1995, signed by the Sheriff of the ACT (apparently Ms Circosta), being an authorised person for the purposes of the Removal of Prisoners (Australian Capital Territory) Act 1968 (ACT), and addressed to members of the Australian Federal Police, which noted Mr Eastman's conviction for murder, his sentence of imprisonment for life, and his liability to undergo that imprisonment in the ACT or NSW, and requiring "the constables" to convey Mr Eastman to the Officer in Charge of the Goulburn Correctional Centre in NSW, who was to imprison him and keep him imprisoned for life.

57. As mentioned at [45] above, a copy of Carruthers AJ's sentencing remarks was also before the court.

58. The relevant legislation provisions are found in the Sentence Administration Act and the Corrections Management Act 2007 (ACT). They are set out in the Appendix to this judgment.

59. Pt 3.1 of the Sentence Administration Act applies where a court "makes an order sentencing" an offender to imprisonment to be served in full-time detention (such order is defined as a "committal order" in s 10). A committal order authorises the director-general to have custody of the offender and requires the director-general to take the offender into custody and keep him there until released under law (s 11).

60. The committing authority (in this case the Supreme Court) must issue a warrant to the director-general signed by the person authorised by the committing authority (s 12), but the validity of imprisonment is not affected by a failure to issue a proper warrant of imprisonment (s 14).

61. Section 64 of the Corrections Management Act says that a person must not be detained at a correctional centre unless the detention is authorised by a warrant under the Sentence Administration Act (s 12 or s 17), or is:

otherwise authorised, whether by a warrant or other authority (however named), under a territory law or a law of the Commonwealth, a State or another Territory.

62. Mr Eastman argues that current ACT legislation requires his custody to be authorised by two separate documents, being:

(a) a committal order as defined in s 10 of the Sentence Administration Act; and

(b) a warrant authorising his admission to a correctional centre, relevantly issued under s 12 of the Sentence Administration Act, (ss 64(1)(a) Corrections Management Act).

63. Section 330 of the Sentence Administration Act, set out in the Appendix, is a transitional provision no longer included in the current versions of the Act, but presumably still in force under s 88 of the Legislation Act 2001 (ACT) despite its "expiry" under s 352 of the Sentence Administration Act (see s 351 of that Act). It provided that where a person was sentenced before the "commencement day" (being the day on which Chapter 10 of the Sentencing Act commenced, apparently 2 June 2006), the court order for the sentence is taken to be a committal order under pt 3.1 in relation to the sentence (s 330(2)(b)).

64. A committal order is defined in s 10(1)(a) of the Sentence Administration Act as "an order ... sentencing an offender to imprisonment that, under a territory law, must be served by full-time detention". In the Dictionary to the Supreme Court Act 1933, "order" is defined to include a judgment, decree, direction or decision, and I am not aware of any definition that purports to limit the meaning of "order" to exclude the action of a judge in passing sentence by using words such as "I sentence you to imprisonment for life" (being the words used by Carruthers AJ).

65. I am satisfied that the sentence pronounced by Carruthers AJ, set out in his sentencing remarks and recorded in the March 1999 certificate of the Registrar, satisfies the definition of a committal order for the purposes of pt 3.1 of the Sentence Administration Act.

66. However, no warrant under s 12 of the Sentence Administration Act has been produced. Therefore, Mr Eastman argues, his continued detention is unauthorised.

67. Presumably there is a reason why the Sentence Administration Act generally requires two separate documents to authorise the detention of a sentenced prisoner, but s 14 of the Act seems to undermine the requirement for two separate documents, by providing that if imprisonment is in accordance with the relevant committal order, the validity of that imprisonment is not affected "by any failure to issue a proper warrant of imprisonment".

68. Importantly, s 14 of the Sentence Administration Act preserves the validity of the imprisonment not only for the purposes of that Act but also for the purposes of the Corrections Management Act. Section 14 appears to negate the prohibition in s 64 of the Corrections Management Act on the admission to or detention in a correctional centre of an offender whose detention is not authorised by a warrant. That is, by virtue of s 14 of the Sentence Administration Act, as long as there is a proper committal order, there is no bar to detaining a person in the absence of a proper warrant issued under the Sentence Administration Act. Having regard to s 64(3) of the Corrections Management Act, which addresses defects or irregularities in warrants, it seems legitimate to read s 14 of the Sentence Administration Act as applying more widely than just to irregular or defective warrants, and in fact extending to a failure to issue a proper warrant (or "want of proper warrant", as used in the heading to s 14).

69. Apart from the warrants issued for the return of Mr Eastman to custody whenever he appears in this Court (as for instance on the current application), it is not clear that there would have been any occasion for the issue of a warrant for Mr Eastman's imprisonment since the commencement of the Sentence Administration Act, although presumably there was some documentation, or even legislation, authorising the transfer of prisoners held in prisons outside the ACT when the AMC was ready to receive them several years ago. It may be that there are transitional provisions somewhere deeming warrants dating back to before the Sentence Administration Act commencement date to have been made under the Sentence Administration Act, or that the original warrant (at [55] above) should be treated as otherwise authorising detention as contemplated by s 64(1)(c) of the Corrections Management Act, such that there is no requirement for a warrant under the Sentence Administration Act.

70. However, even in the absence of such documents or legislation, I am satisfied, given the existence of a committal order for the purposes of pt 3.1 of the Sentence Administration Act, that under s 14 of that Act, any failure to have issued a proper warrant for imprisonment as required by s 12 of that Act does not invalidate Mr Eastman's imprisonment, to the extent that his imprisonment is in accordance with "the committing authority's committal order" (that is, with the sentence order pronounced by Carruthers AJ).

71. It is unfortunately the case that the 1995 sentence and the warrant for Mr Eastman's imprisonment in New South Wales, combined with the rather complex interaction of the Sentence Administration Act, the Corrections Management Act, and their transitional provisions, means that the authority for Mr Eastman's detention at the AMC is not as clear-cut as one would hope is the case for offenders sentenced under the current sentencing and corrections regime. However, for the reasons set out above, Mr Eastman's argument that his custody is unlawful because there is no evidence of a warrant issued under s 12 of the Sentence Administration Act does not provide a reasonably arguable basis for making a habeas corpus order.

72. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 123 ALR 478, Deane J at 480 pointed out that a writ of habeas corpus "is not ... available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity".

73. In providing evidence of Carruthers AJ's sentence order for Mr Eastman's imprisonment, the defendant has in my view established a lawful basis for Mr Eastman's continued imprisonment. Neither of the other arguments raised by Mr Eastman in these proceedings appears to raise any doubt about the continuing lawfulness of his imprisonment. Accordingly, the application for a habeas corpus order must be dismissed.

74. It is necessary to consider the chronology of this matter before giving reasons for my refusal to grant a further adjournment of the matter late on 5 April 2011.

3 November 2010: Mr Eastman files an originating application seeking a habeas corpus order.

18 November 2010: Directions hearing before Teague AJ. Teague AJ makes orders for the exchange of written submissions, and for the matter to be mentioned on 17 December 2010.

17 December 2010: Mention before Teague AJ. Teague AJ begins commenting on Mr Eastman's written submissions, indicating matters that he thinks are missing from the submissions. After 16 minutes, Mr Eastman asks Teague AJ to disqualify himself and Teague AJ does so.

10 February 2011: The hearing of the habeas corpus application is listed for 11 March 2011.

17 February 2011: Directions hearing before Penfold J. Mr Eastman is invited to make further submissions, having regard to matters identified by Teague AJ on 17 December 2010, but declines, saying "I don't propose to reframe my application simply because my opponent doesn't like it". Mr Eastman asks Penfold J to disqualify herself.

11 March 2011: Hearing before Penfold J. Penfold J declines to disqualify herself. Mr Eastman asks for an adjournment of his application for a habeas corpus order. Argument on adjournment begins, based on Mr Eastman's hope of a favourable decision on a legal aid application. In the course of the argument, Mr Eastman canvasses both the original ground and a new ground for his habeas corpus application at some length. After nearly four hours of argument, the adjournment application is adjourned to 5 April 2011.

5 April 2011: Hearing before Penfold J. Mr Eastman presses his adjournment application, because he is still waiting for a further reconsideration by Legal Aid ACT of its refusal to give him legal aid. He makes submissions about his health, and gives evidence about his treatment in the AMC. The Deputy Director of Legal Aid ACT, Martin Hockridge, attends court to clarify the situation in relation to the legal aid application. Mr Eastman seeks a further adjournment.

75. Mr Eastman's first application for an adjournment of the hearing of the matter was made in writing dated 3 March 2011. He then raised it on 11 March 2011, the day that had earlier been set down for the hearing of his habeas corpus application after Teague AJ had disqualified himself from hearing the matter.

76. At the 17 February 2011 directions hearing, Mr Eastman had indicated that he was keen to proceed with the application on the listed date of 11 March, whether or not his legal aid application was granted. However, he said, he would not in his current circumstances be able to represent himself, or even be able to give proper instructions to his representatives, on that date. For that reason, he said, he was making an oral application for orders against the prison administrators to prevent interference with the administration of justice constituted by impeding his preparation for the hearing of the habeas corpus application (at [103] below].

77. However, at that 17 February directions hearing, Mr Eastman had also been invited to make further submissions, but had indicated that he was generally happy with the submissions already filed. Indeed, my indication that his submissions did not seem to address the issues raised by Teague AJ on 17 December 2010 was, by a somewhat convoluted argument, later relied on as evidence of bias (see the first disqualification decision).

78. The argument in favour of an adjournment had two elements.

79. One can be summarised as that Mr Eastman had at least an arguable case, but that he should not be forced to argue it by himself before an application for legal aid was finally determined.

80. The second was that by mid-February 2011, events inside the AMC had made it impossible for Mr Eastman to prepare properly for the hearing of his application, and that he would not be able to do so until his situation in the AMC improved.

81. Mr Eastman's original application for legal aid was made in 2010, but after the habeas corpus application was filed.

82. Mr Hockridge of Legal Aid ACT told the Court that the original application for legal aid had been refused, and that refusal was confirmed on a reconsideration. The application then went to a Review Committee, which adjourned its consideration in the knowledge that Legal Aid ACT itself had sought counsel's opinion on an issue raised by Mr Eastman's habeas corpus application.

83. In support of his application, Mr Eastman tendered a letter from Legal Aid ACT dated 23 February 2011 (received by him on 28 February) about his application for legal aid, to the following effect:

I write to advise we continue to await the opinion of Counsel and will provide a copy of this as requested to the Review Committee. I will advise as soon as this is received. As previously advised the Review Committee has adjourned the review of Legal Aid ACT's refusal to grant you legal assistance pending the receipt of this opinion.

Should you have any questions please contact Client Services on 6243 3411.

The principles laid down in the Dietrich case are applicable to a civil case to this extent:- if a litigant, through no fault of his own, has not yet received an answer to an application for legal aid, the case should be adjourned until he has received that answer. The Plaintiff, through no fault of his own, is still awaiting a decision from Legal Aid ACT.

85. The principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 (Dietrich) were expressed by Mason CJ and McHugh J at 311 as follows:

... it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial.

... The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.

... as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation.

87. I do not consider that, in this matter, these principles have the effect contended for by Mr Eastman.

88. Mr Eastman is not in these proceedings on trial for anything, whether a serious criminal offence or any other kind of offence. The proceedings do not involve any challenge to his conviction or even to his sentence. The fact that a conviction for a serious criminal offence led to the imposition of the sentence of life imprisonment in respect of which Mr Eastman's application for release on licence has been refused under the legislation challenged in this application seems to me to be far too remote a connection with a serious criminal offence to invoke the Dietrich principles.

89. Furthermore, this application is quite unlike a trial for a serious criminal offence in important respects, being that the application was instituted by the plaintiff (Mr Eastman) at a time of his choosing, and it could at any stage have been withdrawn without prejudicing his right to make a further application (including at a point when legal aid had been made available).

90. Finally, the principles in Dietrich seem to imply that, other than in exceptional circumstances, the trial concerned should not proceed, ever, without the necessary representation. That is, legal representation is identified as likely to be necessary to the conduct of a fair trial. In suggesting that the hearing of his application should be adjourned until he has a final answer on the availability of legal aid (not until he has obtained legal aid), Mr Eastman undermines any possible relevance of the Dietrich principle, by implicitly conceding that legal representation is not fundamental to a proper or fair hearing of his application. If legal representation is not fundamental, and if the timing of the habeas corpus application was entirely within Mr Eastman's control, then the failure to make a timely application for legal aid to permit representation, or alternatively the making of a premature habeas corpus application, provides no basis on which Mr Eastman should be permitted to keep his habeas corpus application on foot and in the court's lists for some unspecified period. I could see no reason why he should not be expected to deal with it in the normal course of events or to withdraw it and approach the court again when he is ready.

91. Thus, the principles in Dietrich provided no basis on which to grant a further adjournment of the matter.

92. As noted at [43] above, Mr Eastman received a copy of the opinion sought by Legal Aid ACT and, he said in his written submissions, an indication from that agency that if an approach to the Attorney-General to consider a change to the relevant law was not successful, Legal Aid ACT would reconsider his legal aid application. Mr Eastman provided counsel's opinion to the Court and to the defendant, and repeated his application for an adjournment, this time by reference to the Legal Aid Review Committee's adjournment of his review application while awaiting an answer from the Attorney-General about its law reform proposal. The attempt to defer further the point at which Mr Eastman would consider his legal aid application had been finally dealt with did not seem to me to enhance his claim for a further adjournment of the habeas corpus application.

93. The other problem for Mr Eastman was that, as noted, he had instituted his habeas corpus application before even applying for legal aid. The application had been listed for directions on 18 November 2010, at which point Teague AJ had directed the filing of submissions by the defendant by 2 December 2010 and submissions in reply by Mr Eastman by 16 December 2010. If Teague AJ had not disqualified himself on 16 December, the application would presumably have been listed for hearing before his Honour early in 2011. In the event, it was listed for hearing before me on 11 March 2011, after a mention on 17 February 2011. That is, Mr Eastman had been aware at least from early December 2010 that the matter was proceeding towards a hearing. By 16 December he had been required to file submissions in reply.

94. On 10 February 2011 the Supreme Court Registry sought to advise Mr Eastman that the matter had been re-listed, for directions on 17 February 2011 and for hearing on 11 March 2011. The advice was both faxed and posted to Mr Eastman at the AMC on 10 February 2011, but the file indicates that on that day Mr Eastman refused to accept or sign for the papers when Corrections officers sought to deliver them to him.

95. It seemed to me that Mr Eastman should have been ready to argue the substantive aspects of the habeas corpus application at any time from the point in mid-December 2010 at which he had filed his submissions in reply. His claim that in the period of some weeks before the March hearing date, his preparation for the hearing had been disrupted by management action at the AMC (at [103] below) did not explain why he had not been ready for a hearing of his application well before that.

96. It is notable that when Mr Eastman appeared before Teague AJ on 17 December 2010, he made no suggestion that his preparation for the matter had been disrupted, he told Teague AJ that his oral submissions could take up to two and a half hours, and he made it clear to Teague AJ that he considered that the outline of submissions he had provided was an entirely adequate basis on which he would make his oral submissions, as the following transcript indicates:

HIS HONOUR: Mr Eastman, if I were to give you as much time as you wanted to speak today how long would you take?

MR EASTMAN: I would estimate the maximum that I'd want would be 2½ hours.

HIS HONOUR: - - - I asked you to do was provide an outline - - -

HIS HONOUR: Well, I asked you to provide a written outline of submissions in reply to the written outline provided by Mr Mossop. Why did you not do that?

MR EASTMAN: Well, what do you mean why didn't I not do that? I thought that I did do that, your Honour.

MR EASTMAN: Yes, but it is typed single spaced, single lines. Mr Mossop's might look longer but when you actually look at it it's typed every second line. I don't think it's vastly longer. And in any case, I've addressed - I feel I've addressed the issues. There's no - - -

HIS HONOUR: I'm troubled. Do you want to understand why?

HIS HONOUR: All right. Well, let's start off on the basis that Mr Mossop has raised several matters that you've not addressed at all. Okay? Does that surprise you that I should raise those matters?

MR EASTMAN: No, I didn't think I'd ignored any of the points that he'd made.

97. Teague AJ made repeated efforts to explain to Mr Eastman the gaps his Honour saw in the submissions, and received responses exemplified by the following:

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

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

MR EASTMAN: Yes, I understand it but I consider it to be rubbish.

98. When Mr Eastman appeared before me on 17 February 2011, I asked whether he wished to revise his submissions to take account of the issues raised by Teague AJ, but this invitation was refused and, as mentioned, was later treated by Mr Eastman as evidence of bias on my part (see the first disqualification decision).

99. Mr Eastman was obviously ready to make extended submissions on 17 December 2010, and by 17 February 2011 had not come to the view that his case needed any revision, despite Teague AJ's comments. I considered that the difficulties he claimed to have been labouring under in the weeks before 17 February did therefore not justify any adjournment beyond the scheduled date of 11 March.

100. As it happened, the proceedings had to be adjourned once more (until 5 April), because a substantial part of the proceedings on 11 March was taken up with dealing with the first disqualification application.

101. On 5 April 2011, argument and evidence, ostensibly about the adjournment application, occupied a further full day of court time, towards the end of which I refused the application for the adjournment and invited Mr Eastman to begin his submissions on the habeas corpus application. Mr Eastman responded that he had come to court prepared to deal only with an adjournment application, and declined to begin his submissions, at which point I indicated that I would in that case deal with the application on the basis of written submissions. Mr Eastman then asked me to disqualify myself, which I again refused, and he then asked to be removed from the courtroom. The orders for the filing of final written submissions were made after Mr Eastman was removed, and were notified to him subsequently; the specified dates were later extended in chambers, and he filed further submissions as permitted by the chambers orders.

102. In refusing Mr Eastman's application for a further adjournment on 5 April, I was satisfied that the indefinitely deferred review of his legal aid application (which had already been refused twice) did not provide a basis for an indefinite adjournment of his habeas corpus application. I was also satisfied, despite the undoubted inconvenience of the prison environment for his preparation, but largely by reference to Mr Eastman's own repeatedly-expressed determination to pursue his habeas corpus application on the basis of his original submissions, that Mr Eastman had had adequate time to prepare the arguments he originally intended to make on his habeas corpus application, and that the application should not be repeatedly adjourned until Mr Eastman was inclined (for whatever reason) to re-agitate it, whether on the original or on new grounds.

103. At the directions hearing on 17 February 2011, Mr Eastman made an oral application for orders to prevent interference with the administration of justice, which he said was occurring as a result of the actions of AMC officers. He claimed, as an example of this, that a prison officer had been turning the light on and off in his cell throughout the previous night to deprive him of sleep.

104. I declined to consider the application until proper notice of it had been given to the authorities responsible for the administration of the prison. Mr Eastman asserted that those authorities were well aware of his application; the basis for this was that he had, in pursuit of an equivalent set of orders, faxed an appropriate application in proceedings and accompanying affidavit to the Supreme Court several weeks earlier in connection with a separate Court of Appeal matter (that matter then had to be adjourned at short notice when a judge fell ill, so the application had not been considered). Mr Eastman contended that the defendants (who, he said, were the same in this and the Court of Appeal matter) were therefore not ambushed or caught unawares by his oral application.

105. This did not in my view answer the fact that the defendant in the habeas corpus application would not have expected the matter to be argued on 17 February, and would not have had either witnesses or submissions ready to respond to it. I told Mr Eastman that I would not consider his application until it had been made in writing, filed and served.

106. On 18 February 2011, Mr Eastman filed an application in proceedings seeking, among other things, an order that a named prison officer not interact with him, nor be involved in his management, except in an emergency, and that the defendant not interfere with Mr Eastman's preparation in several specified ways. This was accompanied by an affidavit alleging several specific incidents and relying on evidence Mr Eastman had given in a 2009 Court of Appeal matter that had been accepted at that stage as providing a basis for an order against prison authorities. This material was subsequently relied on in argument in relation to Mr Eastman's adjournment application, but the making of orders against the prison authorities was not pursued in oral argument, and no orders were made.

107. At the end of the 5 April 2011 hearing, Mr Eastman made a further application for me to disqualify myself, giving his reasons as follows:

My application is that your Honour - I don't have the benefit of a full transcript but you've made a series of sarcastic remarks reflecting on my integrity and honesty more than once today. I particularly remember you saying that I knew what the phrase "judicial notice" - "taking judicial notice of" was sarcastically. You've made some other sarcastic reflections that again reflected on my honesty, or the honesty of the submissions that I was putting to the court. I don't have the benefit of the transcript. I would be able with the transcript to cite another three or four on top of the reference to taking "judicial notice".

You've shown partiality to Mr Mossop by quite ridiculously proposing a hearing date on 1 September and then, immediately after he objected to that, proposing to make orders completely in conformity with what he demanded. And there have been other constant unfounded reflections suggesting that I was deliberately delaying these proceedings, that I was using them as a vehicle for complaint against the prison services. You've not had a shred of evidence before you to justify these slurs against me.

It's perfectly clear from the evidence of Mr Martin Hockridge there's been no deliberate dilly-dallying by me, that the delay in Legal Aid deciding this matter has been perfectly orthodox and legitimate. You even insinuated that there might have been some conspiracy by Legal Aid before lunch, you said "You're not happy with the fact that they haven't made a decision. They know these proceedings are going on, why haven't they made a decision on Legal Aid?" They haven't made a decision because it takes time to get counsel's advice, for no other reason.

And when serious matters of prison activities which obviously are highly detrimental to my health, and obviously interfere with the administration of justice are brought to your attention you simply take no notice of them whatsoever. It is - the passages before lunch in which you repeatedly asked how on earth could a person being deprived of sleep, and being made to feel suicidal, and sitting in a cell with the light on all night, and not having any documents, how could any of this possibly prejudice their preparations for court?

I mean, any neutral bystander reading those passages would think that you're living on some other planet. Either that or you are prejudiced against me and you're quite happy and content to deny me justice by permitting interferences with my preparation to go on and on, and to deny applications - an application for an adjournment which was clearly necessary on perfectly valid grounds.

I'm not interested in using the court to make - as a vehicle for complaints. I put to you matters that this court, with more reasonable judges in control, have found no difficulty in accepting would tend to interfere with the administration of justice. In fact, I don't believe that any matters of the seriousness of what I told you this morning occurred, a prison officer saying "It's a pity that this particular prisoner has not committed - attempted suicide, rather than someone else", I don't believe that anything of that gravity has ever been notified to the court before and you took no notice of it whatsoever when you were informed of it this morning, and you pooh-poohed any suggestion that this could genuinely interfere with my preparations for court.

Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189

At a glance

Court

Decision date

Before

Source

Judgment (332 paragraphs)

Eastman v Chief Executive of the Department of Justice and Community Safety [2012] ACTSC 189 (21 December 2012)

Parties

Legislation Cited (32)

Cases Cited (4)