Eastman v Marshall [2012] ACTSC 134

3. The process for ordering an inquiry is set out in ss 422 to 425 of the Act as follows:

(1) An inquiry may be ordered under this part into the conviction of a person for an offence only if -

(a) there is a doubt or question about whether the person is guilty of the offence; and

(i) any evidence admitted in a relevant proceeding; or

(ii) any material fact that was not admitted in evidence in a relevant proceeding; and

(c) the doubt or question could not have been properly addressed in a relevant proceeding; and

(d) there is a significant risk that the conviction is unsafe because of the doubt or question; and

(e) the doubt or question cannot now be properly addressed in an appeal against the conviction; and

(f) if an application is made to the Supreme Court for an inquiry in relation to the conviction - an application has not previously been made to the court for an inquiry in relation to the doubt or question; and

(g) it is in the interests of justice for the doubt or question to be considered at an inquiry.

John has been convicted of murder. Expert evidence that blood found on John's jacket shortly after the murder was almost certain to be the victim's blood was the main evidence connecting John with the murder.

Later DNA testing, by a method developed after all proceedings in relation to the conviction had been finalised (and the time for making any appeal had lapsed), shows that the blood is almost certainly not the victim's blood. This gives rise to a doubt or question about the blood evidence that could not have been (and cannot now be) properly addressed in any relevant proceeding in relation to the murder, and a significant risk that the conviction is unsafe.

(2) The inquiry is limited to matters stated in the order for the inquiry

(3) If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.

The Executive may order an inquiry on its own initiative.

(1) The Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person's behalf.

(2) The registrar must give a copy of an application for an inquiry to the Attorney-General.

(3) The Supreme Court may consider a written submission by the Attorney-General or the director of public prosecutions (or both) in relation to the application.

(4) Proceedings on an application are not judicial proceedings.

(5) If the Supreme Court orders an inquiry, the registrar must give a copy of the order to the Attorney-General.

1. Rights and duties in relation to orders for inquiry

(1) This division does not create a right to the order of an inquiry, and does not create a duty to order an inquiry.

(2) Without limiting subsection (1), there is no right of appeal in relation to a decision whether to order an inquiry.

4. The application for the second s 424 inquiry came before Marshall J who determined that he had no power to consider the second application. He held that s 422(1)(f) only permits one application for one inquiry into a conviction.

5. On 3 April 2012, Mr Eastman filed an originating application in this Court seeking orders which, in effect, require his Honour to consider the application for the second inquiry. One basis for the relief sought was s 34B(1) of the Supreme Court Act 1933 (ACT).

6. On 5 June 2012, Penfold J made an order under s 13 of the Supreme Court Act 1933 (ACT) that the application be considered by the Full Court. By that time, the Attorney-General for the Australian Capital Territory had intervened and, in view of the submitting appearance filed by the respondent, provided a contradictor for the proceeding.

7. At the hearing today, the Solicitor-General for the ACT appeared on behalf of the Attorney-General for the ACT. His contribution has been of great assistance.

8. In the end, the application required two issues to be resolved, namely, whether his Honour erred in the construction of s 422 and, if so, whether the Full Court can grant relief. Both parties urged the Court to answer each question in the affirmative.

9. The language of s 422 must be the starting point for a consideration of its meaning. The section does not expressly limit an applicant to a single application. Rather, it provides for an application where there is a doubt or question which has certain characteristics. The doubt or question might relate to evidence that was admitted in the proceeding, or a material fact that was not admitted in evidence (s 422(1)(b)). This paragraph contemplates that there may be separate, multiple doubts or questions which may give rise to grounds for an inquiry.

10. His Honour's construction commenced, not with the language of the section, but with part of the Explanatory Memorandum accompanying the Crimes Legislation Amendment Bill 2001 (ACT) which stated:

It is expected that the inquiries power would be used only in exceptional cases. Thus the grounds reflect the intention that there must be cogent reasons for revisiting cases already determined by the Courts. It is not intended that the inquiries power be used as an alternative to the appeals process or as a means of endlessly challenging a conviction.

His Honour, at [18] said this statement made it plain that only one inquiry into one particular conviction is permitted by s 422.

11. Even if it were appropriate to start by considering the Explanatory Memorandum, it does not support the conclusion that only one inquiry is permitted. The Explanatory Memorandum shows that the purpose of the section is to limit the number of inquiries but it does not limit them to a specific number.

12. The consequence of the construction accepted by his Honour would be that if, for example, following an unsuccessful application for inquiry, advances in forensic medicine proved the innocence of the person convicted, no further inquiry could be ordered. We agree with Mr Richter QC, who appeared with Mr O'Donnell for Mr Eastman, that this outcome is not likely to have been intended.

13. His Honour thought that because s 422(1)(a) provides that the doubt or question must be about whether the person is guilty of the offence, only one application could be made. That conclusion does not follow. Section 422(1)(a) refers to one, but not the only, characteristic of the doubt or question. As explained above, s 422(1)(b) envisages the possibility of a number of different doubts or questions about a conviction.

14. His Honour at [19] relied upon the following view expressed by Besanko J at [22] of his reasons in the first s 424 inquiry:

...the effect of section 422(1)(f) is that in relation to a particular doubt or question only one application may be made under Part 20 of the Act.

15. His Honour also relied upon the view expressed by Penfold J in Eastman v Besanko [2010] ACTCA 15; (2010) 244 FLR 262 (Eastman v Besanko) at [20], where her Honour said:

... s 422(1)(f) of the Crimes Act, in ruling out the ordering of an inquiry if there has been a previous application in relation to the doubt or question concerned, whether or not that previous application was made by the current applicant or by someone else, suggests that whatever the legal consequences of an application in relation to a particular doubt or question, they do not have any special significance in relation to the applicant.

16. Neither of these observations supports the view that only one application may be made. Rather, they confirm that only one application may be made in relation to the particular doubt or question raised in a previous application.

17. Consequently, his Honour erred in holding that he lacked power to consider the application.

18. Section 34B(1) of the Supreme Court Act 1933 (ACT) gives the Court power to grant relief by way of prerogative relief, defined in subs (2) to include relief by way of mandamus, prohibition or certiorari.

19. In Eastman v Besanko, where the issue of prerogative relief did not in fact arise for consideration, Dowsett J at [48], expressed the opinion that the judgment in Re Jarman & Ors; Ex Parte Cook (1997) 188 CLR 595 (Re Jarman) presented an insurmountable obstacle to that course.

20. The Solicitor-General contended, and Mr Richter QC agreed, that Re Jarman is distinguishable. One reason is that the decision under review in this case, unlike the decision in Re Jarman, involves the exercise of a non-judicial power. Furthermore, the power to order an inquiry was formerly given to a judge as persona designata. The Act was amended by the Crimes (Legislation Amendment) Act 2001 (ACT), amongst other things, to give the power to the Court. It is, as the Solicitor-General submitted, unlikely that in so doing, the Parliament intended to deprive an applicant of access to review under s 34B(1), where the Court wrongly determines that it has no jurisdiction to conduct the inquiry.

21. Consequently, the Full Court has power to direct the performance of the duty to consider whether an inquiry under s 424 should be ordered. In the circumstances, that direction should be given.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicant: Mr R Richter QC and Mr T O'Donnell

Solicitor for the Applicant: Darryl Perkins Solicitors

Solicitor for the Intervener: ACT Government Solicitor