CATCHWORDS PRACTICE AND PROCEDURE - ACT Supreme Court - applications for leave to appeal - criminal proceedings - trial in progress - interlocutory orders - refusal of permanent stay - refusal to disqualify for bias - revocation of bail - fragmentation of criminal process - no exceptional circumstances. CRIMINAL LAW - ACT Supreme Court - murder trial in progress - interlocutory orders of trial judge - refusal of permanent stay - refusal to disqualify for bias - revocation of bail - application for leave to appeal to Federal Court. Walton v Gardiner (1993) 177 CLR 378 Sergi v Director of Public Prosecutions, unreported, New South Wales Court of Appeal, 10 September 1991 R v Iorlano (1983) 151 CLR 678 Jarrett v Seymour (1993) 46 FLR 557 Elliot v Seymour (1993) 119 ALR 1 Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 Yates v Wilson (1989) 168 CLR 338 Orr v Holmes (1948) 76 CLR 632 Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Barton v Walker (1979) '2 NSWLR 740 Gas_& Fuel Corporation Superannuation Fund v Saunders (1994) 123 ALR 323 Federal Court of Australia Act 1976 (Cth) s. 27 Supreme Court Act 1933 (ACT), s. 4A Bail Act 1992 (ACT), s. 22 No. ACT G36 of 1995 No. ACT G37 of 1995 No. ACT G40 of 1995 DAVID HAROLD EASTMAN v THE QUEEN Applicant Respondent, BLACK CJ, SHEPPARD AND BEAUMONT JJ 7 JULY 1995 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA No. ACT G36 of 1995 No. ACT G37 of 1995 ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G40 of 1995 ) ) ) DISTRICT REGISTRY GENERAL DIVISION APPLICATION FOR LEAVE TO APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DAVID HAROLD EASTMAN Applicant AND: THE QUEEN Respondent CORAM: BLACK C.J., SHEPPARD AND BEAUMONT JJ. DATE: 7 JULY 1995 PLACE: MELBOURNE (APPLICATIONS HEARD IN CANBERRA) MINUTES OF ORDER THE COURT ORDERS THAT: shite Leave to appeal in each of matters ACT G 37, 38 and 40 of 1995 is refused. Qs The republication of these orders and the reasons judgment except to the parties and their legal advisers is prohibited until further order of the Court or of a judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA No. ACT G36 of 1995 No. ACT G37 of 1995 ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G40 of 1995 ) ) ) DISTRICT REGISTRY GENERAL DIVISION APPLICATION FOR LEAVE TO APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DAVID HAROLD EASTMAN Applicant AND: THE QUEEN Respondent CORAM: BLACK C.J., SHEPPARD AND BEAUMONT JJ. DATE: 7 JULY 1995 PLACE: MELBOURNE (APPLICATIONS HEARD IN CANBERRA) REASONS FOR JUDGMENT THE COURT: These three applications for leave to appeal arise in the following circumstances. The applicant, David Harold Eastman, is charged with the murder of Colin Stanley Winchester on 10 January 1989. The indictment, dated 29 March 1993, was filed in the Supreme Court of the Australian Capital Territory at about that time, the applicant having been committed for trial by the Coroner on 24 December 1992 after a coronial inquest held from' May 1989 to December 1991, and reopened in November 1992. In May 1994, prior to the commencement of the trial, the applicant moved the Supreme Court for an order that the proceedings be permanently stayed. On 11 July 1994, Jenkinson J., sitting as a Judge of the Supreme Court, refused the motion. The trial of the applicant was fixed to commence on 1 May 1995 before Carruthers A.J. On 1 May, the applicant's solicitors filed a notice of motion, returnable before the Supreme Court on 2 May, again seeking a permanent stay. On 2 May 1995, the trial commenced and is currently part heard. On 2 May, the applicant requested that the trial Judge disqualify himself. His Honour declined the request. On 16 May 1995, Carruthers A.J. refused the application for a permanent stay filed on 1 May, and on 1 June his Honour gave reasons for the refusal. The applicant now seeks, in matter ACT G 36/95, leave to appeal from the order made on 16 May refusing the stay. This application is dated 19 June 1995. In matter ACT G 37/95, the applicant seeks to appeal against what is said to be the judgment given on 16 May. The basis of this application, also dated 19 June, is said to be that the trial Judge exhibited bias. The third application before this Court in matter ACT G 40/95, is an application for leave to appeal from the order made by Carruthers A.J. on 29 June whereby the applicant's bail was not renewed. The applications were argued at length over a period extending throughout 3 and 4 July. On 3 July the Court sat until 6 p.m. The matter was concluded at 5.40 p.m. on 4 July when the Court reserved its decision. The applicant was unrepresented but had a comprehensive grasp of the points which he wished to make. He was very articulate and presented his case clearly. Ordinarily, the Court would publish more detailed reasons than these, dealing in detail with each of the arguments presented to it. There are reasons, however, why that is not possible in this case. The first of these is time. The applications have been made by the applicant during the course of a criminal trial. The trial has proceeded, so we were informed, for the past seven weeks. The Crown has called some 60 of the 200 or so witnesses it proposes to call. On the present rate of progress it is anticipated that the Crown case will occupy a further eight weeks. The due administration of justice requires a decision from this Court on the matters that were argued as soon as it is reasonably possible for it to be given. There is a further reason why the reasons are necessarily brief. Many of the matters which are relied upon touch on sensitive aspects of the trial and the possibility of any misconception that we have a view about these matters must be minimised. We have no more than an outline of the Crown case. We have heard no evidence, and, in any event, it would be quite irrelevant and inappropriate for.us to express any view of our own about any aspect of the evidence. Nevertheless, misunderstandings occur and it is desirable that the chances of that happening be reduced so far as that is possible. Numerous points were relied upon by the applicant. We do not propose to address each one. The critical points may be referred to as the flawed inquest point, the fresh evidence point, the bias point and the bail point. It was substantially upon the flawed inquest point that the applicant relied in his application that the trial be permanently stayed. The submission with which his Honour dealt was made for the applicant by senior counsel then appearing for him. The submission is succinctly put in written submissions which were given to his Honour and which have been made available to us. The applicant relied upon those submissions. In his affidavit in support of the application for a stay filed on 1 May, the applicant's solicitor contended that the continuation of the proceedings would be an abuse of process for the following reasons: "(2) Because of the flawed Inquest proceedings and the inadequate police investigations on which those proceedings were based the accused cannot receive a fair trial. To require the accused to stand trial in these circumstances would constitute an abuse of process; (£2) The Crown case is a circumstantial one and it is incumbent on the Crown to exclude beyond reasonable doubt any reasonable hypotheses consistent with the accused's innocence. Evidence at the Inquest raised a number of such hypotheses, yet the Crown case as outlined, and its list of proposed witnesses, indicate its intention not to lead evidence of such hypotheses in the trial. To deny the accused the benefit of such hypotheses is oppressive and an abuse of process; (iii) The Crown case as outlined is so inherently weak that if a guilty verdict were to be returned at trial it would be quashed on the appeal as being unsafe and unsatisfactory and no new trial would be ordered. Thus, to require the accused to stand trial on this prosecution case would be oppressive and an abuse of process; (iv) The proceedings constitute an abuse of process because of undue delay which has prejudiced the accused's right to a fair trial. (v) The accused has been subjected to a regime of harassment by Australian Federal Police officers which has interfered with his ability to properly instruct his legal representatives in his defence to the extent that to require him to stand trial on the indictment would constitute an abuse of process; (vi) To allow the Crown to lead what is termed the 'Webb Evidence' given to the Inquest on 18 November 1992 would be oppressive and an abuse of process. The Crown case against the accused fails in the absence of the said evidence." Having referred to the authorities in this area, in particular, the judgment of Jenkinson J. and the "balancing exercise" explained by the majority of the High Court Qlsson CJ., Deane and Dawson JJ.) in Walton v Gardiner (1993) 177 CLR 378 (at 396), the primary Judge proceeded to analyse the circumstances of the case, and considered each of the grounds (i) to (vi), above, contended for on behalf of the applicant, and in the light of the authorities, concluded that no basis for the grant of a permanent stay had been made out. In our opinion, subject to the question of the tender of fresh evidence, to which we will return, no case for leave has been made out. The principles to be applied in this area are well settled. In Walton, Mason CJ., Deane and Dawson JJ. agreed (at 392) with the approach taken by the New South Wales Court of Appeal that it had power to make an order staying proceedings if satisfied that their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process; and that it would only be so satisfied in an exceptional or extreme case. A similar approach has been taken by that Court, in a criminal context, in Sergi v Director of Public Prosecutions, 10 September 1991, unreported. Moreover, so far as intervention at the appellate level by this Court is concerned, there are powerful discretionary reasons why this Court should not interfere (see R v Iorlano (1983) 151 CLR 678 at 680; Jarrett v Seymour (1993) 46) FCR 557; Elliott v Seymour (1993) 119 ALR 1). As Dawson J. 'said in Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373: "This Court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances." In Yates v Wilson (1989) 168 CLR 338, Mason CJ, Toohey and Gaudron JJ, in refusing an application for special leave to appeal against a decision of this Court not to interfere with a Magistrate's decision to commit a person for trial, stressed the undesirablity of fragmenting the criminal process. Their Honours said (at 339): "The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions {Judicial Review) Act 1977 (Cth) as well as inhibit this court from granting a special leave to appeal." Where the fragmentation of a criminal trial is involved, the usual tests applied in civil cases to determine whether leave to appeal should be granted from an interlocutory order yield to the further and very powerful consideration that the fragmentation of a criminal trial by appellate proceedings is highly undesirable, so that leave will be granted only in exceptional circumstances. Other factors that point to this conclusion include what Kirby P. described in Sergi v Director of Public Prosecutions as: "the 'large provisions to challenge a conviction on appeal if, at the end of a trial, the accused is convicted and still complains about an interlocutory ruling." The circumstance, if it were present, that an applicant might succeed upon appeal on grounds sought to be raised by way of appeal during the course of a trial, and will have suffered the expense and strain of a criminal trial in the meantime, is not, for these purposes, an exceptional circumstance: Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373-374, per Dawson J. The principles to be applied by the trial Judge are also well established. In Walton, Mason CJ., Deane and Dawson JJ. said (at 395- 6): "... the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice." In our view, it has not been shown that the primary Judge failed to identify correctly these principles or that exceptional circumstances exist such as would warrant the grant of leave to appeal. The fresh evidence point was based mainly on the recent availability to the applicant of transcripts of conversations overheard by police officers as a result of the installation of listening devices in or close to the applicant's flat. Some of these conversations were with his solicitors. The applicant complained that the subsequent transcription of the conversations, which were conversations between himself and his legal adviser, amounted to a gross breach of legal professional privilege which had been permitted by the Australian Federal Police. We are prepared to assume that this may have been the case. Furthermore, we are not prepared to accept at face value the bland assurance of counsel for the Crown that the installation of the listening devices without a warrant in the vicinity of the accused's home was lawful. We are unable to determine whether the installation was lawful or unlawful because we have heard no evidence on the point. It is unnecessary, for the purposes of reaching a conclusion on the matters relied upon by the applicant, for us to do so. The principles upon which fresh evidence may be received are well established. They have been propounded by the High Court in Orr v Holmes (1948) 76 CLR 632, Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 and Commonwealth Bank of Australia v Quade (1991) 178 CLR 134. One of those principles is that a person seeking to rely on fresh evidence in an appeal must establish, not only that the evidence came into his possession after the trial of the matter but that, if the evidence had been available at the time of the trial, there would have been at least a real possibility that it would have led to a result opposite to that reached at the trial. \Here the trial is not the present trial which is continuing péfore his Honour nor the inquest. It is the hearing before his Honour. The question we must ask ourselves is whether, if his Honour had had the transcripts available to him at the time he 10. made his decision, there would have been ae distinct possibility of his reaching a different conclusion. In our opinion, having regard particularly to the lapse of time between the inquest and the trial, it is most unlikely that his Honour's conclusion would have been any different from what it was. Apart from these matters, there is a question whether, although the material upon which the applicant relies in fact came into his possession very recently, it was not available to him much earlier and indeed before the application made to the trial judge for the permanent stay. The fact that the conversations in question had been overheard by the police was well-known. It was apparently their content which was not known. It seems that if a request for the transcript had been made by the applicant earlier, it would have been complied with. That was all at a time when the applicant was represented by competent senior counsel. There is thus a question whether the applicant exercised due diligence to obtain the material required for his application to his Honour for a stay. In our opinion, this is not a case in which: the discretion to receive further evidence under s.27 of the Federal Court of Australia Act 1976 should be exercised. Lis Accordingly, leave to appeal in matter number ACT G 36 of 1995 is refused. We turn to the bias point. An initial difficulty confronting the applicant is that no formal order was made by the trial Judge on either occasion when his Honour declined to disqualify himself, being 2 May and 29 June respectively, from which an appeal could be brought. Moreover, it is by no means obvious what order of any utility could now be made here by an appellate court, even if it were persuaded to intervene at this juncture (see Barton v Walker (1979) 2 NSWLR 740; cf. Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 123 ALR 323). But, in any event, we are not persuaded that any ground for disqualification has been made out. The applicant relied upon a number of statements in the transcript by his Honour which he said gave him a reasonable apprehension that his Honour was biased against him. We have examined each of these instances and have reached the conclusion that the submission is not justified. A few things need to be said about this matter. Firstly, a trial of the length of this one, particularly bearing in mind its complexity, naturally imposes a substantial strain on all those engaged in it. That particularly applies to an EZ. accused person who, for much of the trial, has chosen to represent himself. One of the difficulties about taking this course is that an accused person in such a position is inclined to lose his own objectivity and balance which counsel, removed as he or she is from personal involvement in the case, is usually able to avoid. A trial such as this imposes strains of a different kind on the Crown and those who represent it, on police officers and others who give evidence and upon jurors. A very substantial burden is cast upon the trial judge whose duty it is to see that the trial remains fair throughout. It is only natural that, at times, patience will be tried, tempers may tend to become a little short and misunderstandings may occur. From time to time remarks may be made which may be regarded on reflection as incautious or unwise. It is plain on the face of the transcript that his Honour has had a concern on some occasions that the applicant has been deliberately endeavouring to say things, or to act ina manner, calculated to have an influence on the jury in his favour. His Honour has rebuked him from time to time for making what may be termed irrelevant and unhelpful comments. Particularly in respect of one. occasion which occurred on 29 June last, the applicant is prepared to concede that! his own behaviour left something to be desired. He claims however to have been provoked into this behaviour by a remark made by his Honour. The remark was made in the context of a 13. consideration of whether or not the applicant should be allowed to remain on bail. In the submission of the applicant the remark made by his Honour, which we shall not repeat, was unsympathetic and sarcastic. We do not wish to say any more about it other than that it may have been better expressed. It was the applicant's submission that his own behaviour was brought about by resentment at what his Honour had said. On another occasion, when the appellant was represented by counsel, his counsel was cross-examining a key witness in the trial. We do not go to the significance of this evidence except to say that, upon the basis of the outline of the Crown case which we were given by counsel for the Crown, the witness was certainly a very important one. His Honour apparently thought the cross-examination had proceeded for too long and made another remark which, in our view, was unfortunate. Again we do not go to the particular discussion which ensued between his Honour and counsel but, understandable though it may have been, it may have been better if his Honour had endeavoured to bring the cross-examination to an end in a less forthright way. Although we have said what; we have, it would be going much too far to take the view that these remarks made by his Honour may be reasonably perceived to have reflected animosity towards the applicant so as to justify a finding of apprehended bias on his part. 14. There was another aspect of the bias argument which was unusual. Our attention was drawn to the fact that his Honour was appointed pursuant to s.4A of the Supreme Court Act 1933 (A.C.T.) as an additional judge of the Court. Appointments may not be made for periods longer than 12 months although, as we understand the statute, it would be quite permissible for the executive to reappoint a judge who has been appointed to act for an additional period. The point relied upon by the applicant is that his Honour's appointment concludes in December next. He says, therefore, that the trial has to finish before then. Otherwise his Honour cannot sit. Subject to his Honour's reappointment in that event, that would not be so. The applicant has complained that from time to time, his Honour has made remarks which suggest that he is anxious to maintain the momentum of the trial. The applicant, so he says, has understood this to mean that his Honour is intent on finishing the trial at all costs as soon as possible so as to meet this deadline. We have no hesitation in saying that the applicant is under a misapprehension about this matter. No judge presiding over any trial, whether civil or criminal, these days does so without being conscious of the ; need to keep proceedings as brief as possible so long as doing so is consistent with the due administration of justice. The applicant ought not, simply because his Honour has indicated his wish that the momentum of the trial be maintained, take from that some 15. indication that his Honour does not propose to carry out his duty of ensuring that there is a fair trial. It would, of course, be a counter-productive exercise for his Honour to engage in such a process. His Honour would be well aware of this. If he were to do so, the trial would almost certainly miscarry with the consequence that the time and expense incurred in the trial would have been wasted. No one would be more conscious of this than his Honour who has had a very substantial experience in criminal trials. The likelihood is that, if the trial were to run longer than December, the Government of the Australian Capital Territory would reappoint his Honour for such period as was necessary to enable him to complete the trial. The bias point is rejected. In any case, no exceptional circumstances have been shown. Leave to appeal in matter number ACT G 37 of 1995 is refused. We now turn to the application for leave to appeal against the trial judge's order by which the applicant's bail was not renewed. Counsel for the Crown did not persist with his argument that the Court had no appellate jurisdiction in that matter. The applicant argued that he should have leave to appeal against the bail decision because the trial judge had based it upon the applicant's disruptive conduct which, he said, was a 16. matter to be dealt with in accordance with the principles relating to contempt of court and was not within the exclusive criteria regarding the grant of bail set out in s.22(1) of the Bail Act 1992 (ACT) and, in particular, s.22(1)(c)(i). In the course of giving his reasons the trial judge said: "It is indeed a rare case where an accused person is on bail while standing trial for murder. Had there been no course of disruptive conduct on the part of the accused I would of course have allowed that situation to continue, exceptional and unusual as it 2S However, I have no hesitation in saying that the accused has now left me in a position where I feel I have no alternative but formally to revoke his bail." His Honour did not indicate specifically the part that the disruptive conduct played in the process of his applying the criteria provided for by s.22(1) of the Bail Act, but in the overall context of his reasons we think it emerges that his Honour was basing his decision not upon the disruption as such but upon the disruption as a factor which he considered to be relevant to the criteria in s.22(1)(a). Accordingly, even if s.22(1)(c)(i) is limited in the way contended for by the applicant - a point upon which we need express no opinion - we do not think it has been shown that his Honour erroneously applied s.22(1). Moreover, the refusal of the application for the renewal of bail was very much a matter for the discretion and judgment of the judge presiding at the trial and in respect of such matters an appellate court is usually ill-equipped and LVs reluctant to interfere. There is then, of course, the added circumstance that the grant of leave to appeal would involve interference with the course of the trial. In our view, no exceptional situation of the kind required to warrant our intervention in these circumstances has been made out and we consider that leave to appeal should be refused. During the course of the applicant's submissions to this Court, the applicant requested a declaration that the trial Judge, Carruthers A.J., was not validly appointed as a Judge of the Supreme Court. His Honour was appointed an acting Judge of the Supreme Court from 3 April 1995 to 22 December 1995 pursuant to s.4A of the Supreme Court Act. The applicant now seeks to argue that, by reason of the application to the Territory of the doctrine of the separation of powers, the purported appointment was invalid because s.4A itself and this particular appointment "breaches the doctrine of separation of powers". As we understood the submission, it was that there was invalidity because the executive was empowered to appoint judges, including acting judges, in that way, was empowered to interfere with the judicial arm of government. We reject this submission. All judicial appointments in Australia, acting and otherwise, are made upon the advice of the executive government of the day. It has never been suggested that this in any way transgresses the separation of powers which is provided for in the Commonwealth Constitution or in the 18. constitutions of States and Territories which have written constitutions. We make the following orders: 1. In each matter, leave to appeal is refused. 2: The republication of these orders and the reasons for judgment, except to the parties and their legal advisers, is prohibited until further order of the Court or a judge. I hereby certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Court. Associate: ue te Date: 7 July 1995 APPEARANCES The applicant represented himself. Counsel for the respondent: M.F. Adams QC J.E. Ibbotsen J. Brewster Date of hearing: 3 and 4 July 1995 Date of judgment: 7 July 1995