FEDERAL COURT OF AUSTRALIA

Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209

DIRECTOR OF PUBLIC PROSECUTIONS (ACT) v DAVID HAROLD EASTMAN & ORS

A 26 of 2002

WHITLAM, MADGWICK and GYLES JJ

3 JULY 2002

SYDNEY (HEARD AT CANBERRA)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

ADDENDUM

All members of the Court were anxious to announce the decision of the Court at the earliest possible time. Whitlam and Gyles JJ had, by the time the decision could be announced, prepared their reasons for decision. All members of the Court considered it useful that those reasons should be then published, which was done. This addendum provides Madgwick J’s dissenting reasons.

Associate:

Date: 19 July 2002

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

MADGWICK J:

58                  In my opinion, as I have already indicated, the appeal should be dismissed. Because of the obvious desirability of the members of the Court announcing their conclusion urgently and, as the majority were able more speedily to express their reasons than I could, the course was followed of publishing the majority’s reasons when the conclusions of the members of the Court were announced. I now furnish the reasons for my conclusion.

59                  Whitlam and Gyles JJ have relieved me of the need to set out the history and procedural background of this matter. As to some preliminary matters, I agree with them, substantially for the reasons that they give, that the appellant Director had the power and standing to bring the proceedings in the Supreme Court and that, if leave to appeal is necessary, the Director should have it. See also, however, [119] below.

The context

60                  Before interpreting any statute it is appropriate to understand, as best one can, the context and probable concerns of the legislature. In a number of Australian jurisdictions, including the Australian Capital Territory, the search for context and purpose is statutorily required (see s 11A Interpretation Act 1967 (ACT) (“the Interpretation Act”)) to be undertaken, as logic would indicate that it should be, before any question of ambiguity might arise: in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 634-5 Brennan CJ, Dawson, Toohey and Gummow JJ commented that:

“…the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy …”

61                  Dawson J pointed out in Mills v Meeking (1990) 91 ALR 16 at 30-1 that considerations of purpose can help to determine whether more than one construction is open.

62                  I take the relevant context to be as follows.

63                  By the 18^th century in England it was well-settled that a supposed capital offender’s inability advisedly to plead to an indictment prevented his or her being tried for the offence. The received position was that if such an offender, before arraignment:

“ ‘becomes absolutely mad’ … ‘he ought not by law to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed’. The reason is ‘because that he cannot advisedly plead to the indictment’ ”: Hale, The History of the Pleas of the Crown (1736), vol 1 at 34-35 cited in Eastman v The Queen (2000) 203 CLR 1 at [22] per Gleeson CJ and in R v Mailes [2001] 53 NSWLR 251 at 273 per Wood CJ at CL.

64                  The origins of this rule lay in humanitarian concerns, also well-recognised in the 18^th century. In 1790 Lord Kenyon told a jury:

“... the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing; for, however guilty he may be, the inquiring into his guilt must be postponed to that season, when by collecting together his intellects, and having them entire, he shall be able so to model his defence as to ward off the punishment of the law.” : Proceedings in the Case of John Frith for High Treason (1790) 22 Howell's State Trials 307 at 318, cited in Mailes at [119] per Woods CJ at CL.

65                  As Gaudron J put it in Eastman, at [64], “the common law guarantees an accused person a fair trial according to law and … one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead”. The common law was long settled by 1883 when the first version of s 475 found its way into the NSW statute books (ss 383 and 384 of the Criminal Law Amendment Act 1883 (NSW)). By 1879, recognition of the common law principles was expressed in s 59 of the Lunacy Act of 1878 (NSW) 42 Vic. No 7:

“When any person committed to take his trial for any offence shall be certified by two medical practitioners … to be insane or shall upon arraignment be found by verdict to be insane the Colonial Secretary may direct by order under his hand … that such person be removed to a hospital for the criminal insane and detained in such hospital until he shall be certified by the medical officer and the Inspector General or by the said medical officer and two official visitors to be of sound mind whereupon the Colonial Secretary shall order his removal to the gaol from whence he came in order to his being tried for such offence. Provided that such detention for any period shall not operate as a bar to his subsequent indictment and trial for such offence.”

66                  Less explicitly, the Dangerous Lunatics Act of 1843 (NSW) 7 Vic. No 14 (s 2 and s 3) appears to have proceeded, in part, on a similar premise.

67                  The question of fitness to plead not only concerns fairness of a trial: it is a unique matter and actually fundamental to the structure of the criminal law’s processes for ascertaining guilt. As Hayne J explained it in Eastman, at [293]-[294]:

“A criminal trial is an accusatorial and adversarial process. It ‘is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence’. As Barwick CJ said:

‘It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.’

Ordinarily, then, it will be for the prosecution to prove its case and for the accused to choose the ground or grounds upon which to meet the accusation.

But the unstated premise from which these descriptions of the criminal trial process proceed is that the accused is fit to plead and fit to stand trial. There can be no trial at all unless the accused is fit both to plead and to stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed, it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary.”

68                  To like effect, Gaudron J said in Eastman, at [62]-[63]:

“If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, ‘no proper trial has taken place [and the] trial is a nullity.’ To put the matter another way, there is a fundamental failure in the trial process.

The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum, ‘the trial [is] a nullity’, the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law.”

69                  Unfitness to plead is not, however, lightly established. The common law sets the bar quite high: the tests were stated in R v Presser [1958] VR 45 (the same tests have been legislated in the ACT: s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT). Gleeson CJ (at [23]) summarised the test as it would apply to Mr Eastman’s case:

“For the purposes of the present case, the test was the subject of statute. Paraphrasing s 68(3) … and applying it to the present case, the test was whether the applicant was capable of -

(a) understanding what it is that he had been charged with;

(b) pleading to the charge and exercising his right of challenge;

(c) understanding that the proceeding before the Supreme Court would be an inquiry as to whether or not he did what he was charged with;

(d) following, in general terms, the course of the proceeding before the Court;

(e) understanding the substantial effect of any evidence given against him;

(f) making a defence to, or answering, the charge;

(g) deciding what defence he would rely on;

(h) giving instructions to his legal representative (if any); and

(i)           making his version of the facts known to the Court and to his legal representative (if any).”

The question is whether the accused has sufficient comprehension of some basic matters to defend himself or herself, not whether he or she might do so skilfully: ibid and, as the Chief Justice observed at [24], it is common enough for the criminal justice system to have to deal with accused persons subject to mental disorders and sometimes severe ones: the “existence of the disorder does not, of itself, prevent them from being brought to trial”.

70                  In 1883 many crimes were capital offences and capital punishment was a real punishment, frequently pronounced by sentencing judges and carried out by no means infrequently. Rights of criminal appeal were then minimal and clumsy: “rudimentary” as the majority have it.

71                  The enactment and subsequent re-enactment of what is now s 475, in a context of a much better and fuller system of criminal appeals, self-evidently proceeded from concerns that, whatever appellate processes were deemed appropriate at particular times by the relevant legislatures, nevertheless matters might come to light after a conviction that could indicate that all had not been well with the administration of justice in a particular case.

72                  Thus the doctrine of fitness to plead arises from deep humanitarian concerns, and goes to the fundamentals of the trial process, even more than cases of actual miscarriage of justice constituted by questions as to the strength of the case against an accused person. Given this, there seems to be no satisfactory reason to suppose that, in 1883 or later, although the relevant legislatures wished to provide means of investigating cases outside the appellate system where there might be reason to doubt whether a convicted person was guilty of the crime charged, they would not have wished also to provide such means in cases where there might be reason to doubt whether such a person should have been tried at all, by reason of unfitness to plead. On the contrary, it would have been manifestly humane and of possibly extreme practical concern, to include the latter class of doubts within the scope of a provision enlarging the capacity of the Executive to be informed about the substance of supposed doubts and any appropriate course of action.

73                  The section’s processes can be activated in two ways: either by a petition to the Executive by the prisoner (or someone acting on the prisoner’s behalf) or by a Supreme Court judge of his or her own motion. If the Executive so acts, the magistrate is to transmit the depositions of persons examined directly to the Executive. If it is a judge who initiates the inquiry to be conducted by the magistrate, the judge may (and, it is to be assumed, would) report on the inquiry, including, it seems to be contemplated by sub (4), as to how the Executive might dispose of the matter.

74                  Thus, an inquiry might go forward either (a) at the instance of the prisoner by his or her persuading the Executive to act or by requesting a judge to be moved to intervene or (b) by a judge otherwise determining to act, even without request by any person. This suggests that the provision is in part intended to benefit a class, namely “prisoners”, being persons convicted of an offence. This would have the usual consequence of requiring a beneficial interpretation, of course within limits such as those referred to by Hope JA in Varley (see [53] above).

75                  It also suggests either that (1) the Supreme Court has its own sufficient interest in seeing to the erasure of a stain, as the majority puts it, on the administration of criminal justice, or (2) that the question was in 1883, and remains today, of such potential importance to the legislature that a superior court judge (no doubt conceived of as an independent, legally expert and senior person) should, as a fit embodiment of the public interest, have an independent capacity to provoke (or to decline to provoke) further investigation into a conviction and to recommend any necessary and appropriate means of repair or attempted rectification.

76                  Another likely concern was, indeed, the vindication of the public interest in ensuring, so far as possible, that the administration of criminal justice should be stainless.

77                  A further likely purpose, it may be inferred, was to furnish the Executive with a means of putting an end to any public agitation if the magistrate’s depositions and/or the judge’s report indicated that there was no substance to the matter raised.

78                  A judge’s potential involvement was undoubtedly thought appropriate as to such matters, where questions of actual guilt were concerned. There is no reason that I can see why such involvement would not also be thought appropriate in a case of supposed unfitness to plead. Indeed, such would be even more appropriate: a prisoner unrecovered from his or her unfitness to plead would likely be in no position adequately to petition anyone or to authorise another person to do so on his or her behalf. It would be highly desirable that a judge might examine any fresh material about such a case, which might be of legitimate concern to any member of the public. The judge’s decision to become involved might in part be the “remedy” provided by the section in such a case, as well as a potential pre-cursor of other Executive–determined remedies.

The plain meaning of “guilt” in s 475(1)

79                  Facts, Norman Mailer once remarked, are nothing without their nuance. Likewise, one might say, language is nothing without its occasion. It is not to be doubted that in ordinary speech in many, probably most, contexts, “guilt” ordinarily does mean the fact or state, objectively considered, of having committed some offence: the dictionaries so indicate. However, in legal instruments such as statutes and in other texts dealing with the criminal law, the word is very often used to signify something akin to “guilt duly determined”. Reasonably well-informed non-lawyers as well as lawyers would perfectly well understand that, in general, in the criminal law context, the very idea of guilt is meaningless unless it refers to a conception such as guilt duly adjudged or guilt as known to the criminal law, that is (among other things) proved beyond reasonable doubt; upon admissible evidence; upon a formal charge (arraignment) to which the accused person was fit to plead; and, failing acceptance of a guilty plea, after a trial throughout which the accused was fit to be tried. The criminal law is not concerned with the viewpoint of God.

80                  If a person is not fit to plead, he or she cannot be tried for an alleged crime, indeed cannot be arraigned for it. If a person cannot be tried for a crime, he or she cannot be adjudged guilty of it. If an accused person cannot be adjudged guilty of a crime, he or she cannot legally be treated as if he or she were guilty – no punishment can be imposed; no foundation for a future plea of autrefois convict comes into existence. Indeed, he or she is still entitled to the presumption of innocence. Thus, if there is a doubt or question that Mr Eastman was not fit to plead, there is necessarily a doubt or question that he is guilty, or at least that he has unlawfully been treated as guilty. That is to say, in law, that a doubt or question has arisen as to his guilt.

81                  On the approach of Gaudron and Hayne JJ (and as I would understand also, Callinan J) in Eastman, if there was any real but unresolved doubt or question as to Mr Eastman’s fitness to plead, there has necessarily been a miscarriage of justice, substantially for the reasons just indicated. The Court that found him guilty would have acted without jurisdiction. It is, in my opinion, against the plain meaning of s 475(1) to say that such a circumstance would not involve a doubt or question as to Mr Eastman’s guilt.

82                  It is in such a way that I would understand the plain meaning in its context of s 475(1).

83                  It is true that in no decided case of which we have been made aware has the matter been considered with the benefit of thorough argument for (or against) the position contended for by the appellant Director. Nevertheless, Miles CJ and Gray J considered that to read the clause as I do did no violence to the section’s language. In Eastman, Gleeson CJ said, at [15]:

“In Courts of Criminal Appeal which, by statute, are given such power, an opportunity exists for an appellant, who has been convicted of a crime, to seek to demonstrate, by evidence not adduced (and, usually, not available) at the trial, that there has been a miscarriage of justice. Such an opportunity, by its nature, only applies in relation to new evidence which is available at the time of the hearing of the appeal. It is not unusual for there to be claims of miscarriage of justice based upon material which first became available only after the conclusion of an unsuccessful appeal; sometimes many years later. In this country, that situation is addressed in various jurisdictions by statutory provisions empowering executive or curial inquiries into alleged miscarriages of justice. An example is to be seen in the provisions of Pt 13A of the Crimes Act 1900 (NSW). Although those provisions may give rise to a judicial inquiry, and empower the Court of Criminal Appeal, following such an inquiry, to quash a conviction, the process could be described as an "appeal" only in the loosest and most colloquial sense. Nevertheless, the availability of such procedures is part of the background against which the issue presently under consideration arises.” (emphasis added)

84                  Part 13A of the Crimes Act 1900 (NSW) continues the former threshold concept of a “doubt or question as to the convicted person’s guilt …”.

85                  Kirby J wrote:

“[The] outcome [of the appeal to the High Court] is clearly unsatisfactory. In this case, there are other remedies that may permit the repair of the possible injustice to the applicant which the result entails³⁷⁴.”Eastman at [287].

His Honour’s footnote (374) reads “Such as an application under the Crimes Act 1900 (ACT), s 475.” Kirby J’s use of the word “may” I take to refer to the possible inability of the prisoner to require that a Supreme Court judge consider his wish to have an inquiry: Varley and see Kirby J’s footnote (315) referred to at [251] in Eastman.

86                  It is inconceivable that Gleeson CJ was not familiar with the terms of the NSW provisions or that Kirby J referred to the ACT provision without some care. It evidently occurred to neither of them that the ordinary meaning of the inquiry provisions would invalidate their remarks or render them irrelevant.

87                  Indeed, the appellant Director, embodying the Crown in a criminal case, and as the “perfect litigant”, represented to the High Court in Eastman that Mr Eastman “can apply under s 475”: 203 CLR at 5 (see [119] below). The Victorian Solicitor-General did the same: ibid at 7.

88                  What is more, as Gray J noticed and the Attorney General submits, the language and conceptions chosen by the legislature in s 475(1) were plainly expansive: “whenever”; “any”; “doubt or question”; “any matter of mitigation” and, finally, “any portion of the evidence”. Such a tone and style are more suggestive of a broad approach to the range of relevant doubts or questions than of a precise choice to exclude from inquiry irregularities, however potentially shameful for the administration of justice, that would, nevertheless, not impinge on some objective notion of guilt.

89                  I should add, parenthetically, as to the admittedly elusive phrase “any portion of the evidence”, that I would not necessarily conclude, in the absence of argument on the point, that, as a complete alternative to the expression “as to guilt”, it might not include questions of fitness to plead, at least where, as here, the prisoner’s actual courtroom demeanour was so striking as to focus attention on the mental processes that caused it.

90                  The majority, however, point to the fact that it would have been easy for the legislature to put the matter beyond doubt by using the expression “whenever any doubt or question arises as to the said conviction” instead of referring to a doubt or question “as to his or her guilt”. But exquisite attention to pinpoint accuracy in expressing legal concepts and painstaking expungement of ambiguity were demonstrably not the style of the section. Section 475(1) refers, for example, to “any mitigating circumstance in the case”; no doubt that phrase contemplated matters that might be relevant to sentence or, in 1883, reprieve from a death sentence. Nonetheless the phrase appears broader, for example, than the expression “any matter in extenuation of his or her offence” used in s 424: there may be matters amounting to mitigating circumstances in a case, for example, of illness of the prisoner subsequent to the offence, that do not go in extenuation of the offence, that is, that do not go to make the offence itself appear less serious. Further, Hope JA struggled in Varley to find a precise purpose for the expression “doubt or question as to … any portion of the evidence therein”. Nor can I claim to have succeeded where that distinguished lawyer failed, c.f. [89] above.

91                  In any case, in my opinion, it does not here cast light on the meaning of the words actually used in the section to say that, if the legislature had intended one available meaning, it might easily and more clearly have said so. Equally, one might say, had the framers of the legislation intended that the doubts or questions should be limited to whether the prisoner had committed the crime charged, they might readily have said that. Instead they used broader words, apt in the context, to include guilt duly found.

92                  In the result, and to give respect to the impressions of the section held by Whitlam and Gyles JJ, it seems to me that one must at least say that an ambiguity arises.

The 1883 second reading speech

93                  For that reason; also to confirm (if it can be confirmed) that what the majority see as the ordinary meaning of the words was intended, and for the logically anterior task of ascertaining the purpose of the legislation, it is permissible and proper to look to the second reading speech: s 11B of the Interpretation Act. However, before doing so, it seems reasonable to enter a caveat. Despite the progressive provision since 1883 of a generally very adequate system of criminal appeals in NSW and the ACT, and great changes in, and expansion of, that system over the years, both legislatures have seen fit to re-enact what is now s 475 in the changed modern contexts. Other major changes in the development of the criminal law itself have also intervened, notably an increased emphasis on the accusatorial, as distinct from inquisitorial, nature of the criminal justice system to the point where that is one of the system’s most important features: see Azzopardi v The Queen [2001] HCA 25, [38], [120]-[121], [136]-[147]. In these circumstances, the weight to be attributed to a second reading speech, made over 130 years ago, in the context of a very different criminal justice system, might not be great. In my view, whatever may have then been said, modern legislatures would have been likely to read the section as Gleeson CJ and Kirby J appear to have done.

94                  There are, of course, and were in colonial New South Wales, second reading speeches and second reading speeches. Some are admirably informative and apparently well-informed; some are less so. Some set out more to advocate an underlying political position than to instruct those who will pass or decline to pass the bill. There is nothing new in the “law and order” debate. Hanging judges (then literally so) had their counterparts on the colonial parliamentary benches (indeed might have sat there) as did critics of supposedly weak sentencers. The 1883 forerunner of s 475 was a novel measure, going well beyond anything then in existence in England. When the speech relied on was made, the Bill had, essentially, been debated again and again for over a decade. The provision in question may well have been thought to need some heavy, political advocacy.

95                  There was no explanation for the elusive reference to “any portion of the evidence therein”, none for the new and singular grant of power to the Supreme Court judges to provoke Executive action. There was however a readily understood appeal to an all-male audience, using the example of a rape prosecutrix whose “character”, “honour” or “chastity” might, after trial, be questioned. The example was however not merely, by modern standards, embarrassingly sexist: the death penalty still applied in rape cases, so that actually escaping the gallows was being alluded to.

96                  The brevity, the relevant portion of the speech and its manifest inadequacy as an explanation indicate, in my view, that it would be unsound to place any relevant reliance on it. Questions of fitness to plead are and no doubt were apt to arouse popular and therefore political controversy and to give rise to difficult decisions for legislators. The present case furnishes an example. In the Court below, the Attorney General put a position favouring the appellate Director’s contentions. Before us, he put arguments to the opposite effect. A parliamentary proponent of a clause such as s 475 seeking to avoid parliamentary or extra-parliamentary strife might well, in 1883 as now, have chosen a politically easily saleable example, rather than more difficult ones. One would not lightly, however, impute to that same parliamentarian, let alone the legally distinguished framers of the provision (see [100]) a lack of understanding of the doctrine of fitness to plead, its moral and humanitarian origins, and its fundamental importance to the functioning of our criminal law system.

97                  In any case, as historical experience shows, the most common concerns are, and were in the 1870s and 1880s, likely to stem from material casting light on guilt as objectively conceived. It is very natural that an example drawn from the more common area of concern should have been used to explain the measure. It is a long way from the use of such an example to a conclusion that the parliamentary speech stated exhaustively the entire range of concerns of the principal framer of the Bill, Sir Alfred Stephen, the former Chief Justice of New South Wales (who had, as Lieutenant Governor, acted as Governor of the Colony).

98                  Finally, let it be granted that the relevant extrinsic materials do evidence an overriding concern that an actually innocent prisoner had been wrongly convicted. It is, even so, manifest that another important concern was the difficulty for the Executive of dealing with petitions for mercy or pardon based on material going to the commission or non-commission of the constituent events of the offence charged. Such difficulty would be no less should a petition be presented suggesting that there ought to have been no trial at all.

99                  Sir Alfred Stephen was the father of the modern criminal law of New South Wales, based as it is on the Criminal Law Amendment Act 1883 (NSW). Within the limits of his time and place, he was a fair-minded man. In my view, there is properly to be imputed to Stephen and the parliamentary reformers who, after a 12 year battle, eventually secured the passage of the 1883 Amendment Act, the intention that, in the relevant section, “guilt” should be understood so as to enable an inquiry into whether a prisoner should, on account of supposed unfitness to plead, have been tried at all. Nothing in the second reading speech

compels a contrary view, and such an approach would, in the criminal law context, have been a fair one, as well as plainly expedient.

100               The foregoing deals with the case as it was argued on this point. Since then, I have benefited from recourse to an instructive work by Judge GD Woods QC “A History of Criminal Law in New South Wales”, in course of publication by Federation Press, which I had the privilege of reading in draft. Among other things, that book traces the tortuous path leading to the passage of the 1883 Amendment Act from its origins in the recommendations of an 1870-1 Law Reform Commission, chaired by Stephen (then the Chief Justice of NSW). There were, in fact, many second reading speeches. They were not all to identical effect. But it is fair to say, on balance, as I have conceded, that the materials do indicate that the principal concern was with cases where the commission of the acts making up the offence might be doubted. That fact, as I have sought to explain, does not, in my view, necessitate or warrant the result reached by the majority.

101               In my view the extrinsic material does not resolve the ambiguity.

The mischief rule

102               As ambiguity must, in my opinion, be thought to exist, and even without it – see [60] above – the “mischief rule” may be resorted to. O’Connor J in the 1906 case of White and, even more so, Hope JA in Varley (see the extracts set out by Whitlam and Gyles JJ at [53]) quite naturally stated the mischief in such a way that, in my opinion, it supports the construction of s 475 which I favour. Other judges, as the learned primary judge noted, have also quite naturally so discussed the text of s 475(1). The mischief clearly included possible loss of public confidence in the due and humane administration of criminal justice, a fundamentally important matter. See also [108] below.

Power granted to judicial officers

103               Another principle of statutory interpretation is either directly applicable or gives some assistance by way of analogy. That is that:

“a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit”: PMT Partners (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ.

104               As Toohey and Gummow JJ put it in the same case (at 316):

“… it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making implications or imposing limitations not found in the words used. This may be so even if what is involved is the displacement of a general precept of the common law where this result accords with the evident purpose of the statute.”

See also Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185, 191 and 202-3 in which a provision that costs should be in the discretion of the Court was construed as authorising a costs order, even against non-parties. At 205 of that case, Gaudron J said:

“It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. See Hyman v. Rose [1912] AC 623, at p 631; FAI General Insurance Co. Ltd. v. Southern Cross Exploration NL (1988) 165 CLR 268, at p 290. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.” (emphasis added)

105               Section 475 grants power (albeit of an administrative character) to the judges of the Supreme Court and contemplates the commissioning of other judicial officers to proceed quasi-judicially, in the service of exceptionally guarding against possible injustices from, and/or fundamental malfunction of, the criminal justice system, not seen to by the appellate system of the Australian judicature. The range of the injustices and malfunctionings to be thus guarded against is, in my opinion, to be understood as liberally as the words governing the matter will permit. At least, the risk that a person might have been found guilty, when he or she should not even have been tried, ought not to be excluded unless intractable language compels it.

106               As to any concern that, on this view, trial irregularities of any kind might possibly be (or historically have been) included, I see no reason to shrink from this. One cannot know in advance how serious the consequences of “mere” irregularities might be in a particular case, but every lawyer knows of their potential importance. It seems to me that the legislature has determined that the power to act under s 475 should be broad, but has placed reliance on the sensible discretion of the decision-makers only to intervene where all the interests of justice mandate intervention. I may add that the historical rarity of resort to s 475 in the last century, whether by the Executive or the judges, is a sound indicator of the validity of such reliance. As Mason CJ and Deane J put it in Knight, at 185:

“The inevitable answer to arguments directed to limiting curial jurisdiction based on the supposition that the jurisdiction might lend itself to abuse is that the court will and should develop principles governing the exercise of the discretion which will ensure that the jurisdiction is not exercised in such a way as to give rise to abuse. And that is the answer to the appellants' case to the extent to which it seeks to confine the scope of the jurisdiction by reference to arguments in terrorem.”

Absence of remedies?

107               It is suggested that the fact that, in the case of a fitness to plead question, there are limited remedies explicitly provided by the statute law to the Executive to follow a s 475 inquiry and (any) report is a reason for construing the words “any doubt or question aris[ing] as to [a prisoner’s] guilt” as not including a doubt or question as to fitness to plead.

108               As I have sought to explain at [78], this somewhat misses the point that, in part, s 475 itself is the “remedy” for the various mischiefs aimed at: it is a means of ventilating and examining complaints not caught by the appeals system; it empowers judicial activation of Executive consideration of a matter in an appropriate case; it is a means of giving the Executive valid materials on which to act or not act and, where a judge moves the inquiry and reports, possible guidance as to whether and how to act. Part of the mischief (as to this, the second reading speech is plainly reliable) was the pre-existing absence of a firm foundation for the Executive to inquire and, if need be, to act. That need would apply as much to a lack of fitness to plead as to, say, fresh exculpatory evidence. Again, the present case furnishes an apt example. If it should be the case that Mr Eastman was unfit to plead, questions of some difficulty as to appropriate repair of what has occurred would arise. In such case, it would be

to the public, and to the Executive’s, advantage to know what a Supreme Court judge, who could quietly hear reasoned argument, might consider should be done.

109               But, in any case, those statutory powers are not narrow and, further, I see no reason to construe the statute as if only other statutory powers of the Executive were in question. The executive government could do many things, well within its common law or statutory authority. It could make government to government representations and arrangements to moderate the conditions of any continued confinement of the prisoner in the (NSW) prison system; it could, as an exercise of executive clemency (the s 558 power to “remit in whole or in part” a sentence of imprisonment), order the prisoner’s release conditionally or unconditionally and either now or at a time to be determined (for example, by those comprising the expert tribunal that would regularly deal with fitness to plead issues); it could move the Parliament, with the authority and prospects of support that in a Westminister system the Executive can expect to have in the Parliament; it could lend such expected support to any measure proposed by any other Member of Parliament. It could, if thought apt, arrange for the prisoner’s assessment under the general mental health laws (which permit the confinement of dangerous, mentally ill persons: s 26 Mental Health (Treatment and Care) Act 1994 (ACT)). It could make an ex gratia payment or payments, so as to make Mr Eastman’s (presumed) continued confinement more comfortable. It could propose imaginative legislation (within constitutional limits) tailor-made for the case. In short, the legitimate scope for bona fide Executive action is very wide, whether explicitly authorised by statute or inherent or implied as a power of government in our system. There is no reason to think that the law would not comprehend remedial processes.

Other avenues for an inquiry

110               Reference was made by the majority to the ability of the Executive to resort to the Inquiries Act 1991 (ACT) or the Royal Commission Act 1991 (ACT). However, nothing in those statutes permits a Supreme Court judge to be the initiator of an inquiry process. Nor does s 475 inhibit a judge from reporting generally in relation to a matter; indeed, as I have indicated, the section seems to contemplate that the judge should be able to offer any recommendation thought proper to the Executive.

111               In any case, in my opinion, the question is not one of, as it were, reading up s 475(1); the question is whether it should be read down to limit the notion of “a doubt or question as to his or her guilt”. The availability of other statutory tools for the Executive does not require or warrant the curial limitation of the scope of a pre-existing statutory means of action, which allowed a judge as well as the Executive to initiate that action.

The “mechanism”: inquiry by a magistrate

112               The mechanism of “examination” of witnesses by a magistrate and possible report by a judge appears, by modern experience of Royal Commissions, somewhat archaically conceived.

113               However, the mechanism does not, on closer analysis, and despite Whitlam and Gyles JJ’s view to the contrary, appear to me to be any more “singularly inappropriate” for an inquiry into whether a prisoner was fit to plead at his trial than for any other kind of important factual inquiry: witnesses, expert or lay, would no doubt depose to and be tested on their observations and expert opinions. Documents would be tendered and received. Magistrates so proceed not only in committals: coronial inquests and inquiries are but one kind of example. In the end, inquisitorial evidence is taken. So it is by a Royal Commissioner. In general, magistrates like other judicial officers may need, at times, to hear evidence from, indeed to pass judgment on, higher-ranking judicial officers.

114               It is, in my view, only the bifurcation of function between the examining magistrate and the reporting judge, where a judge is involved, and the implicit, possible prima facie doubt as to whether, if a judge is not involved, the magistrate might also report, and on what, that casts doubt on the modern appropriateness of the mechanism. But the mechanism owes its existence merely to the antiquity of its original conception and says nothing, in my opinion, as to the scope of the doubts or questions that may be examined.

Development of the appellate system

115               The probable effect of improvements in the appellate system, in my opinion, has been to diminish the number of occasions when exercise of the s 475 discretions by the Executive or a judge to initiate an inquiry (or even to consider such initiation) will be justified: progressively, more matters have been able to be dealt with by appellate courts. But that in no sens denies the continued need for a power so to initiate an inquiry. History is therefore

neutral as to whether the actual scope of s 475 might be regarded as widened or narrowed with the passage of time.

116               I agree that no case is shown for regarding subsequent legislative developments as somehow widening the connotation of the term “doubt or question as to … guilt”. However, in my view, such scope is wide and it always was. Indeed, I have some difficulty in seeing how, in the present context, such widening or narrowing could occur. As to widening, Windeyer J referred, in the constitutional context, to the significance for statutory interpretation of the difference between denotation and connotation in Ex parte Professional Engineers’ Association (1950) 107 CLR 208 at 267:

“We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning, which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.”

117               As to a possible narrowing of the scope of s 475 by later developments, this really involves the notion of implied partial repeal of a statutory provision. However, actual inconsistency with a later statute or statutes is necessary to found such repeal. But s 475 operates precisely when the post-1883 statutory appeal system cannot: no-one would order a s 475 inquiry if there were thought to be any remaining practical utility in such rights of appeal as the prisoner might possess (or still possess). Thus there is, and can be, no inconsistency with the later, fuller, statutory appellate regime.

Conclusion

118               In my opinion, Gray J was right, and in large measure for the reasons he gave.

Addendum: Discretionary matters

119               The aspect of the appellant’s apparent approbation and reprobation on the availability of s 475 (see [87] above) came to my attention after the judgment of the Court was pronounced. But for such pronouncement I would wish to hear further from the Director as to why, having asked the High Court to refuse Mr Eastman leave to appeal, partly because s 475 was available to him, and having succeeded in that opposition, the Director should be given indulgence to question, out of time, whether Mr Eastman can have the benefit of s 475, when he has sought it.

Dated: 19 July 2002