The ACT Director of Public Prosecutions, Jon White, has raised doubts about the constitutional validity of a Supreme Court review of the Eastman murder conviction unless he is given a further opportunity to be heard on whether the court should quash the conviction.
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In written submissions to the Full Court of the ACT Supreme Court, White says that the court, in considering recommendations from an inquiry that the conviction be quashed, will be exercising judicial power. If that is the case, he has a sufficient interest in the case to demand that he be heard.
He warns that the court may need to issue notices under the Commonwealth Judiciary Act to the Commonwealth and state Attorneys-General that it is considering a matter arising under the Commonwealth Constitution, or involving its interpretation, so that they can consider whether they ought to intervene in the case.
An Act put through the ACT Assembly while Bill Stefaniak was ACT Attorney-General was intended to limit the capacity of applicants for review of convictions to continually litigate their cases, as David Eastman has done. It specified that consideration of the report of an inquiry into a conviction was an exercise of administrative rather than judicial power by the court. And it said that the Court, in considering the report, should pay attention only to the report of the inquiry, and not receive submissions from any parties.
The DPP, as well as the AFP, Eastman and other parties made submissions at the inquiry about what the court should do, if Eastman was successful in raising a doubt about his guilt. Those criticised in the report, including the DPP, were also given notice of proposed criticism, and given an opportunity to answer them.
The problem for the Full Court is that many judges think that the act of quashing a conviction (if not necessarily the process of deciding to do it) involves the performance of a judicial function. And, according to the DPP, a court cannot exercise a judicial function without according procedural fairness, which gives anyone affected by the decision an opportunity to be heard.
The Full Court, which had invited submissions about the nature of its jurisdiction, will decide what to do in a hearing in Sydney on Tuesday.
Representatives of Eastman have submitted that the court's jurisdiction is clear from the Crimes Act, and that it is impermissible for the court to receive any submissions. The AFP, also criticised in the report, has reserved its position. The ACT Government has, through its Solicitor-General, Peter Garrison QC, suggested that the court could hear from interested parties if it was not satisfied that they had received procedural justice. Indeed then, it suggests, it could regard the inquiry as being affected by legal error, and void.
"In this way the Full Court is able to ensure that a full hearing occurs of the material issues,'' it adds. But the Attorney-General submitted that the decision to order an inquiry had followed processes that had met the minimum standards of independence, impartiality and fairness, and that the procedures used had allowed parties an opportunity to be heard.
