Supreme Court of the ACT|2009-02-18|Before: Edmonds J, Anthony James J, Commission J

Eastman v The Honourable Justice Besanko [2009] ACTSC 10 (18 February 2009)

David Harold Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10 (18 February 2009)

JUDICIAL REVIEW - administrative decision made under an enactment - whether refusal to issue an order for inquiry into past conviction affects legal rights - there was no right to the issue of an order both before and after the decision was made - Wednesbury unreasonableness - whether decision is based on findings or inferences wholly unsupported by some probative material or logical grounds

HELD - the decision to refuse to order an inquiry into the conviction of the plaintiff was not a decision made under an enactment and therefore not subject to judicial review

Administrative Decisions (Judicial Review) Act 1991 (Qld)

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 applied

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 referred to

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 referred to

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 applied

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 applied

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 applied

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

AND: ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

1. In response to an application by the plaintiff dated 2 February 2005, on 4 April 2008 this Court refused to make an order that an inquiry, under Part 20 of the Crimes Act 1900 (ACT) ('the Crimes Act'), be held into the plaintiff's conviction for the murder of Mr Colin Stanley Winchester on 3 November 1995.

2. At the time of refusing to make the order, the Court published its reasons for reaching that conclusion.

3. On 6 May 2008, the plaintiff filed an application in this Court for review of the Court's refusal to make the order ('the decision') in reliance on s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) ('the ADJR Act') seeking orders quashing the decision and directing the defendant to order an inquiry under s 424 of the Crimes Act.

4. The sole ground of the application was that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made (s 5(1)(e) of the ADJR Act) which, in an affidavit of the plaintiff sworn and filed on 30 May 2008, was particularised as follows: '[The decision] entailed an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power', (s 5(2)(g) of the ADJR Act); the well-known 'Wednesbury' standard of unreasonableness: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 - 230 per Lord Greene MR.

PART 20 OF THE CRIMES ACT: INQUIRIES INTO CONVICTIONS

5. Division 20.2 of Part 20 of the Crimes Act consists of ss 422 - 425 which provide:

_(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.

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.

THRESHOLD ISSUE: COMPETENCY OF THE PRESENT APPLICATION

6. The intervenor raised a threshold issue in the form of the competency of the plaintiff's present application: Was the decision a decision to which the ADJR Act applies? The intervenor submitted that it was not; the plaintiff, not surprisingly, submitted that it was a decision to which the ADJR Act applies.

7. The dictionary at the end of the ADJR Act provides:

decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in Schedule 1.

8. Subsection 3A(1) of the ADJR Act relevantly provides that a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order ...

Thus the Court's refusal to make the order sought is the making of a decision for the purposes of the ADJR Act.

9. And there is no doubt that it is a decision of an administrative character: see subs 424(4) of the Crimes Act; Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 49 - 50 per Hope JA; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [124] per Heydon J.

10. The real issue in the present case is whether the decision is 'made ... under an enactment'. In the context of determining whether a decision is 'made ... under an enactment' for the purposes of the Administrative Decisions (Judicial Review) Act 1991 (Qld), in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, Gummow, Callinan and Heydon JJ said at [89]:

The determination ... involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

11. Senior Counsel for the intervenor submitted that while the first of the two criteria - the decision must be expressly or impliedly required or authorised by the enactment - was 'probably' satisfied in the present case, the second - the decision must itself confer, alter or otherwise affect legal rights or obligations - was not.

12. The plaintiff, who appeared in person, submitted that the decision altered or otherwise affected his legal rights in that whereas he previously had the potentiality of an inquiry into his conviction, following the decision that potentiality was 'definitively removed'. So understood, the plaintiff submitted the decision can be seen to be '... final or operative, and determinative, at least in a practical sense, of the issue of fact falling for consideration ...' rather than '[a] conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision ...': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 per Mason CJ, with whom Brennan and Deane JJ agreed.

13. There are, in my opinion, a number of difficulties with the plaintiff's submission. First, subs 425(1) of the Crimes Act makes it clear that Division 20.2 of the Crimes Act does not create a right to the order of an inquiry, nor does it create a duty to order an inquiry. Thus, both before and after the decision, the plaintiff had no right to the order of an inquiry. No such rights of the plaintiff were altered or otherwise affected.

14. Second, the plaintiff's submission that he had prior to the decision the potentiality to obtain an order for an inquiry which the decision 'definitively removed', relies on para (f) of subs 422(1) of the Crimes Act. This paragraph sets out one of the conditions precedent that must be satisfied before the Court may order an inquiry, namely, an application has not previously been made to the Court for an inquiry in relation to the doubt or question. It is to be observed that it is not the decision which 'shuts out' the potentiality to which the plaintiff points, but the application itself. Once the plaintiff made the application the subject of the decision, he had effectively 'shut out' the potentiality of making a further application which might satisfy all the conditions precedent that must be satisfied, including that in para (f) of subs 422(1).

15. That was the situation both before and after the making of the decision. The decision itself did not alter or affect this potentiality.

16. For these reasons, I am of the view that the decision does not confer, alter or otherwise affect legal rights or obligations and the decision therefore does not satisfy the second criteria in Tang for it to be a decision 'made ... under an enactment'. It is not, therefore, a decision to which the ADJR Act applies.

17. It follows that the plaintiff's application is not competent. However, in deference to the submissions that were made by the parties and in the event I am wrong on this threshold issue, I will address the other issues that were raised.

18. The plaintiff seeks orders under s 17 of the ADJR Act quashing the decision and directing the defendant to order an inquiry under s 424 of the Crimes Act. Even if I was of the view that the application was competent and that the plaintiff had made good his case on the sole ground upon which he relies, it would not be appropriate to make orders in those terms. The appropriate order would be to refer the matter to the defendant for reconsideration and decision according to law.

19. The plaintiff also seeks prerogative relief in the form of orders of, or in the nature of, certiorari quashing the decision, and mandamus directing the defendant to order an inquiry under s 424 of the Crimes Act. In my view, prerogative relief of the kind sought would not be available in the present case even if the application were competent and even if the plaintiff had made good his case.

20. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 580, Mason CJ, Dawson, Toohey and Gaudron JJ described the function of certiorari as being 'to quash the legal effect or the legal consequences of the decision or order under review'. For reasons already referred to in dealing with the competency of the application, the decision does not have any legal effect or legal consequences; it does not affect the legal rights of the plaintiff. For these reasons, a writ of certiorari would not lie to quash the decision.

21. Having regard to the terms of the second limb of subs 425(1) of the Crimes Act - that Division 20.2 does not create a duty to order an inquiry - a writ of mandamus would not lie to compel the defendant to order an inquiry.

22. As indicated in [4] above, the only ground upon which the plaintiff brought his application for review was that the decision entailed an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power: s 5(2)(g) of the ADJR Act.

23. In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, Gibbs J observed, in the course of construing the powers conferred upon a board established under the Potato Marketing Act 1948 (SA), that whether the decision of an authority can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. At 118 - 119, his Honour said:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

24. This passage was picked up by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 where his Honour said at [137]:

This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

25. In other words, review on grounds of reasonableness will be available where the decision-maker's decision is based on findings or inferences wholly unsupported by some probative material or logical grounds but not where analysis of the decision merely shows that the probative material on which the decision-maker relied or the logic he employed may have permitted a different decision: Eshetu at [40] per Gleeson CJ and McHugh J; at [147] per Gummow J.

26. As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 - 42 (omitting reference to authorities):

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned ...

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation [[1948] 1 KB 223 at 229-230], in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the AD(JR) Act in these terms. The test has been embraced in both Australia and England ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. (Emphasis added)

27. In his decision and reasons, the defendant observed, at [25], that Part 20 does not contain provisions setting out in detail the procedure to be followed on an application for an order that an inquiry be held. At the outset, he identified the material that had been put before him, the hearings that had been held and the submissions made.

28. The defendant then set out the grounds upon which the plaintiff relied in his application for an order that an inquiry be held into his conviction, namely:

(1) A doubt or question about whether the plaintiff was guilty of Mr Winchester's murder arises because there was a reasonable hypothesis consistent with the plaintiff's innocence; that there was evidence which would have supported a conclusion that Mr Winchester was or may have been murdered by organised crime.

(2) A doubt or question about whether the plaintiff was guilty of Mr Winchester's murder arises because of the unreliable nature of the forensic evidence concerning gunshot residue given by Mr Robert Barnes.

(3) A doubt or question about whether the plaintiff was guilty of Mr Winchester's murder arises because of the unreliability of evidence given by Mr Raymond Webb to the effect that he saw the plaintiff enter the premises of the person who sold the murder weapon a little less than two weeks before Mr Winchester was murdered.

(4) A doubt or question about whether the plaintiff was guilty of Mr Winchester's murder arises because certain statements by the plaintiff which were said to incriminate him in the murder were not made voluntarily or were made as a result of a concerted and improper campaign by the police to make him confess.

(1) Previous applications made by the plaintiff for an inquiry under s 475 (repealed) of the Crimes Act.

(3) The appeal to the Full Court of the Federal Court, in particular:

(i) Ground 3 of the appeal - the trial judge erred in ruling that MFI 23, and MFI 3A and 3B should not be adduced as evidence under s 130 of the Evidence Act 1995 (Cth). At [85], the defendant wrote:

MFI 23 is document of the AFP entitled 'Operation Peat: Suspicion of Calabrian Organised Crime Involvement in the Murder of Assistant Commissioner Colin Stanley Winchester'. The document was prepared by Detective Commander RR McDonald and is dated 28 September 1989. The Full Court said that much of the information in MFI 23 had been publicly disclosed well before the trial. MFI 3A and 3B were described by the Full Court as 'reports concerning an internal investigation conducted by the AFP into allegations that were made in a television broadcast on 24 April 1989 concerning alleged criminal activity in the Canberra region surrounding the murder of Mr Winchester'.

At [85] - [98], the defendant set out the reasons why the Full Court rejected the challenge in ground 3.

(ii) Ground 5 of the appeal - the trial judge erred in directing the jury that evidence that Louis Klarenbeek had said to Karl Pattenden that he could not recognise anybody from the photographs in Exhibit 73 could not be regarded as evidence of the truth of the words uttered by Klarenbeek. At [105] - [108], the defendant set out the reasons why the Full Court rejected the challenge in ground 5.

(iii) Ground 10 of the appeal - the absence of fresh evidence at the trial resulted in a miscarriage of justice. At [110] - [113] the defendant set out the reasons why the Full Court rejected the challenge in ground 10.

(iv) Ground 11 of the appeal - the trial judge erred in admitting into evidence the enhanced tape recordings and transcripts of conversation compiled by witnesses called by the prosecution. At [118] the defendant set out the reasons why the Full Court rejected the challenge in ground 11.

(v) Ground 12 of the appeal - the trial judge erred in admitting the identification evidence of Mr Webb. At [122] and [123] the defendant set out the reasons why the Full Court rejected the challenge in ground 12.

30. The defendant referred to those particular grounds of appeal because of their relevance: as being related to the grounds of the plaintiff's application for an order for an inquiry.

31. The defendant then turned to deal with the four grounds of the plaintiff's application for an order for an inquiry into his conviction.

The first ground: Reasonable hypothesis consistent with innocence

32. The defendant undertook an analysis of the plaintiff's submission that the material or information in three documents, individually or collectively, raised a reasonable hypothesis consistent with his innocence and therefore a doubt or question as to whether he was guilty of Mr Winchester's murder.

33. At [135] of his reasons, the defendant expressed the opinion that the material or information in the three documents did not, in the circumstances, satisfy the requirements of s 422(1)(a) or (c) and, although it was unnecessary for him to express a concluded view in the circumstances, probably did not satisfy the requirements of s 422(1)(b). There being no relevant doubt or question for the defendant, the issues in s 422(1)(d) and (g) did not arise. In reaching this opinion, the defendant had regard to statements in those documents but quite properly observed that such statements should not be taken out of context and the documents must be read as a whole.

34. At [136] the defendant observed that the matters in the documents were to be considered in the context of the prosecution case which, as the Full Court had observed, was a strong circumstantial case against the plaintiff.

35. While it was not necessary for him to do so, the defendant then went on to refer to the requirement in s 422(1)(b) and also explain why, even if a relevant doubt or question was raised (contrary to his earlier conclusion), the requirement in s 422(1)(c) - the doubt or question could not have been properly addressed in a relevant proceeding - was not met.

The second ground: Evidence of Mr Robert Barnes with respect to gunshot residue

36. The defendant undertook an analysis of Mr Barnes' evidence which was said to be arguably unreliable or incorrect; the three categories of criticisms of Mr Barnes' evidence by Dr Wallace upon which the plaintiff relied; the access and communications the plaintiff and his legal advisers had with Dr Wallace before and at the time of the trial; the criticisms of Mr Barnes' evidence in other cases and the opinions expressed by the Director of the Victorian Forensic Science Centre.

37. At [198] of his reasons, the defendant expressed the opinion that there was no doubt or question with s 422(1)(a). The defendant said:

'The criticisms of Dr Wallace, the comments made by courts in other cases and the criticisms of the Director of the Victorian Forensic Science Centre, do not lead me to conclude that the relevant evidence of Mr Barnes is arguably unreliable or incorrect. The relevant evidence of Mr Barnes is his evidence as to the presence of the chopped particles and his explanation for their presence, namely, that they resulted from the use of a silencer. Nothing has been put forward that satisfied me that I should conclude that the evidence in the case about the presence of the chopped disc particles is arguably unreliable or incorrect. The submission then is that his opinion that the explanation or likely explanation was the use of a silencer is arguably unreliable or incorrect. That submission must be considered in a context in which it is accepted that the use of a silencer is a possible explanation. Mr Barnes carried out a number of tests which he used in support of his opinion. Mr Keeley supported Mr Barnes' opinion in that he said that he could not think of any other explanation for the presence of the chopped disc particles. Mr Barnes' evidence at trial on matters not in contest on this application was supported by an impressive array of other reports.'

38. The defendant went on (at [199]) to say that even if, contrary to his conclusion, it was arguable that Mr Barnes' evidence about the use of a silencer was unreliable or incorrect, that was but one aspect of what was a very strong prosecution case against the plaintiff and would not lead him to conclude that there was a doubt or question about whether the plaintiff was guilty of Mr Winchester's murder.

39. Finally, the defendant concluded (at [200]) that even if the plaintiff had been able to establish a doubt or question within s 422(1)(a), this ground of the application would necessarily fail by reference to s 422(1)(c). The defendant concluded that the substance of the challenge to Mr Barnes' evidence could have been raised at trial and it could not be said that if there was a relevant doubt or question (contrary to his earlier conclusion), it could not have been properly addressed at trial or on appeal. In the defendant's view, the criticisms of Mr Barnes in other cases and by the Director of the Victorian Forensic Science Centre, even assuming they were not available at trial, added nothing of substance to the material relied on to support the challenge to Mr Barnes' evidence about the use of a silencer.

40. This ground related to Mr Webb's evidence that, as he was leaving Mr Klarenbeek's premises, he saw a man, whom he identified as the plaintiff, enter the premises.

41. As the defendant observed at [201], the starting point for this ground of the application was the undisputed fact that the murder weapon was the Ruger 10/22 rifle purchased from Mr Klarenbeek.

42. The defendant canvassed the three bases upon which the plaintiff contended that Mr Webb's evidence was arguably unreliable or incorrect:

(1) Mr Klarenbeek had said that he had not sold a gun to the plaintiff;

(2) in earlier statements and evidence Mr Webb had not referred to the fact that he had seen the plaintiff enter Mr Klarenbeek's premises on 31 December 1988; and

(3) statements of other persons who went to Mr Klarenbeek's premises on 31 December 1988 were such that it was unlikely if not impossible that Mr Webb's evidence could be correct.

43. The defendant at [212] was satisfied that none of these matters, nor all three taken together, gave rise to an arguable case that the important aspects of Mr Webb's evidence were unreliable or incorrect; but even if it did, in the defendant's view it did not lead to a conclusion that there was a doubt or question about whether the plaintiff was guilty of Mr Winchester's murder. In the defendant's words:

[T]he case against the applicant was a very strong one. There is no doubt or question within s 422(1)(a).

44. Finally, the defendant was of the view that even if he were wrong and there was a doubt or question within s 422(1)(a), the plaintiff failed to meet the requirement of s 422(1)(c). Again, in the defendant's words:

Having regard to the availability of the material relevant to the three matters and the conduct of the trial and the appeal, it could not be concluded that if there was a doubt or question within s 422(1)(a) (contrary to my earlier conclusion), it could not have been properly addressed at the trial or on appeal.

The fourth ground: The statements by the plaintiff in his flat

45. This ground alleged that there was a doubt or question whether the statements made by the plaintiff in his flat were voluntary; it was submitted that if the statements were excluded from the evidence against the plaintiff there was a doubt or question about his guilt within s 422(1)(a).

46. The defendant noted that an admission must be excluded under the Evidence Act if it is influenced by violent behaviour or threats of such behaviour (s 84) and may be excluded if, having regard to the circumstances in which it was made, it would be unfair to the defendant to use the evidence (s 90).

47. The defendant also noted that at the trial, the plaintiff claimed that he had been harassed by the police and he objected to the admission into evidence of the tape recordings and transcripts of his statements in his flat; he also noted his senior counsel's submission that although there was no illegality in terms of a breach of a statute, the situation was 'so outrageous, bearing in mind the previous harassment and improper conduct, that it amounts to what could be termed oppression and should be excluded'.

48. The defendant noted that the trial judge decided that the tape recordings could be put before the jury; and that the trial judge rejected an argument that the tape recordings and transcripts should be rejected on the ground of unfairness under s 90 of the Evidence Act because of delay in providing transcripts to the plaintiff.

49. The defendant also noted that the Full Court addressed an argument that the tape recordings and transcripts should not have been admitted into evidence. Indeed, the defendant relied on a short passage from the Full Court's reasons for judgment, namely -

[I]n our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat'

as providing a complete answer to the suggestion that the plaintiff's statements were not voluntary or were wrongly admitted. In the defendant's words (at [221]):

Even if harassment were established, there could not be shown any causal link between it and the incriminating statements made by the applicant. There is no doubt or question within s 422(1)(a).

50. At [222] and [223] the defendant drew the following conclusions:

None of the matters in the application raise either an arguable case that the evidence at trial or any item of it was unreliable or incorrect, or that there was a material fact that was not admitted in evidence at the trial. I have already given my reasons for reaching that conclusion in relation to each ground. Considering the grounds together does not, in those circumstances, advance the applicant's case. There is simply no doubt or question about whether the applicant is guilty of Mr Winchester's murder.

It was put on the applicant's behalf that there were serious questions about two major threads in the prosecution case at trial, namely the evidence of Mr Barnes and the evidence of Mr Webb. I have rejected that submission for the reasons I have given. However, if I assume that there is an arguable case that Mr Barnes' evidence about the use of a silencer and important aspects of Mr Webb's evidence are unreliable and incorrect, and then considered the two together, nevertheless I am not satisfied that there is a doubt or question about whether the applicant is guilty of Mr Winchester's murder in light of all the other evidence called by the prosecution at trial. In any event, even if I assume that the two matters considered together gave rise to a doubt or question within s 422(1)(a), it is clear that the essential material relied on by the applicant in relation to those two grounds was available at trial and the requirement in s 422(1)(c) could not be satisfied.

51. An analysis of the defendant's reasons indicates that the defendant approached the task of deciding whether to order an inquiry under Part 20 of the Crimes Act into the plaintiff's conviction for the murder of Mr Winchester in an ordered and methodical fashion by reference to:

(1) The criteria that needed to be satisfied under s 422(1) of the Crimes Act before an inquiry may be ordered;

(3) The prosecution's case at trial in respect of the grounds of the application and the trial judge's findings thereon;

(4) The grounds of the appeal to the Full Court of the Federal Court relevant to the grounds of the application and the Court's conclusion thereon; and

(5) An analysis of whether all or any of the grounds of the plaintiff's application raise a doubt or question which satisfied the requirements of s 422(1) having regard to the matters in (3) and (4) above, as well as the submissions and other material before him.

52. I am unable to identify in the defendant's process of reasoning any exercise of power which can be described as being so unreasonable that no reasonable person could have so exercised the power.

53. This is not to say that no reasonable mind could have come to a different conclusion from the defendant on one or more of the grounds of the plaintiff's application. But even if I were to conclude, and I hasten to add that I do not, that it was open to a reasonable mind to conclude otherwise than the conclusion reached by the defendant, that is not sufficient, as indicated in the passages extracted or referred to in [24] - [26] above, to constitute an improper exercise of power within s 5(1)(e) of the ADJR Act.

54. It follows, in my view, that if the application for review were competent, it could not succeed.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Edmonds

Counsel for the Plaintiff: The plaintiff appeared in person

Solicitor for the Intervenor: ACT Government Solicitor

Administrative Decisions (Judicial Review) Act 1991(Qld)

Potato Marketing Act 1948(SA)

Decisions (Judicial Review) Act 1989

Decisions (Judicial Review) Act 1991

Administrative Decisions (Judicial Review) Act 1991(Qld)

Potato Marketing Act 1948(SA)

Decisions (Judicial Review) Act 1989

Decisions (Judicial Review) Act 1991

Eastman v The Honourable Justice Besanko [2009] ACTSC 10

At a glance

Court

Decision date

Before

Source

Judgment (138 paragraphs)

Eastman v The Honourable Justice Besanko [2009] ACTSC 10 (18 February 2009)

Parties

Legislation Cited (8)

Cases Cited (8)