Armstrong v R

1. [1]

   BEECH-JONES CJ at CL: This application raises an issue of construction about s 84 of the Crimes (Appeal and Review) Act 2001 (the “CAR Act”), namely whether a person who has received a free pardon but was not the subject of an inquiry under Division 4 of Part 7 of the CAR Act may apply to this Court to quash their conviction. For the reasons that follow, I consider the answer to that question to be “no”. I propose that the application be dismissed.

Background

1. [2]

   On or about 15 February 2007, the applicant appeared before Hornsby Local Court to face three charges, namely that on 20 August 2006 he assaulted his partner contrary to s 61 of the Crimes Act 1900 (NSW), committed an indecent assault contrary to s 61L and maliciously caused damage to property contrary to s 195(a). In view of the conclusion I reach in relation to this Court’s jurisdiction to hear the matter, it is not necessary to recount the facts of the offences.

2. [3]

   At the hearing in the Local Court, application was made for the charges to be dismissed pursuant to former s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). The application was refused. The matter proceeded to a defended hearing. The applicant was convicted and made subject to a bond under former s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for a period of five years and subject to conditions that he continue to take his medication and be subject to psychiatric and psychological management.

3. [4]

   The applicant appealed against his conviction and sentence. On 4 June 2007, Blanch CJDC dismissed the appeal against his conviction. However, his Honour reduced the term of his bond to three years and made it subject to a condition that he accept the supervision of the Probation and Parole Service.

4. [5]

   From around February to December 2010, numerous letters were sent to the Governor of New South Wales seeking a pardon for the applicant. This included a letter from his partner. The applicant’s submission accurately summarised the effects of the letters as follows:

5. [6]

   On 26 November 2010, the applicant wrote to the then Governor seeking a pardon. Further letters were sent in 2011 including by members of Parliament. On 17 August 2011, the applicant wrote to the then Attorney-General seeking a pardon.

6. [7]

   On 25 October 2011, the Director General of the Department of the Attorney-General and Justice wrote to the applicant advising him that:

7. [8]

   Beyond this, no reasons were provided for the granting of the pardon.

Application to this Court.

1. [9]

   On or about 10 March 2021, the applicant filed a document in this Court seeking an order under s 84(1) of the CAR Act that his convictions be quashed. The applicant seeks to rely on the material that was placed before the Local and District Courts. He also seeks to rely on the material provided to the Governor as part of his request for a pardon and an affidavit sworn by him which describes the ongoing effect of his convictions on his career. His affidavit attaches various psychiatric and psychological reports prepared over the last 13 years.

2. [10]

   The written submissions filed in support of the application sought the quashing of his convictions on the basis that: the refusal to grant the application under former s 32 of the MHCPA was unreasonable; the proceedings in the District Court “precipitated an injustice”; the granting of the pardon demonstrates that he was deserving of “executive compassion and support”; the recording of the convictions has left him stigmatized (the “Mark of Cain”) and the removal of the convictions will improve his mental health and “open the possibility of future employment and travel”.

3. [11]

   In response to the application, the respondent raised a threshold point. It contended that, as there had been no inquiry into his conviction under Division 4 of Part 7 of the CAR Act, this application could not be made. In effect, the respondent submitted that that contention is supported by the facts of this case. The applicant does not seek the quashing of his convictions on the basis that some aspect of his trial and conviction was tainted as revealed by an inquiry but because of wider considerations such as compassion that are the domain of a grant of executive clemency and not a court of law.

4. [12]

   To address the respondent’s contention, it is necessary to describe the nature and effect of a “free pardon” and closely consider the statutory provisions especially having regard to their origins.

The Prerogative of Mercy and “Free Pardons”

1. [13]

   As set out below, s 84 of the CAR Act enables an application to be made to this Court by or on behalf of a person who has received a “free pardon”. Section 114 of the CAR Act expressly provides that “[n]othing in this Act limits or affects in any manner the prerogative of mercy”. Many other statutes contain similar provisions (see for example Crimes (Sentencing Procedure) Act 1999, s 102).

2. [14]

   In Kelleher v Parole Board (NSW) (1984) 156 CLR 364 at 371; [1984] HCA 77 (“Kelleher”), Wilson J noted that Clause 9 of the letters patent constituting the office of Governor dated 29 October 1900, confer on the Governor power to exercise the prerogative of mercy in the following terms:

3. [15]

   It is not necessary to address whether this grant defines the full scope of the prerogative of mercy or explore the authority upon which it is exercised by the Governors of the States or the Governor General (see Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180 at [67]; “Ogawa”; Evatt, The Royal Prerogative, The Law Book Company Limited, 1987 at pp 117 to 119). It suffices to note that these letters patent recognise the concept of a “free pardon” as being what was described in the letter sent to the applicant namely an unconditional pardon (ie, free of conditions). That said, the effect of a free pardon is to relieve a person from the effects of the conviction but not eliminate the conviction itself (Eastman v DPP (2003) 214 CLR 318; [2003] HCA 28 at [98] per Heydon J citing R v Foster [1985] 1 QB 115 at 130; Kelleher at 371 per Wilson J). The distinction between a pardon and the quashing of a conviction is a significant feature of Part 7 of the CAR Act.

4. [16]

   As a general rule, prerogative powers unregulated by statute such as the prerogative of mercy are only amenable to judicial review as to their scope and effect but not the manner of their exercise (The Queen v Toohey; ex parte Northern Land Council (1980) 151 CLR 170 at 218; [1981] HCA 74 per Mason J). In Horwitz v Conner (1908) 6 CLR 38; [1908] HCA 33, the exercise of the prerogative of mercy was held not to be judicially reviewable. In Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275; [2008] HCA 37 at [47], the potential for judicial review of the prerogative of mercy was noted but not addressed (see also Holzinger v Attorney-General of Queensland (2020) 5 QR 314; [2020] QCA 165 at [67ff]; “Holzinger” and Ogawa at [73]).

5. [17]

   The potential width of the circumstances in which the prerogative of mercy may be exercised is exemplified by the following passage from Osland (at [47]):

6. [18]

   As this passage makes clear, the power to grant a pardon may be exercised by reference to considerations well beyond any perceived defect or miscarriage of justice in the offender’s trial or sentence. It may extend to all manner of considerations that are well beyond the criteria that a court reviewing a conviction or sentence can consider, some of which have recently been described as not justiciable (Holzinger at [17] and [18]). Absent a constitutionally valid express conferral of power to do so, there is no scope for a Court vested with jurisdiction to review or quash a conviction to exercise that power based on, for example, “purely compassionate” grounds or an assessment that the law is “unduly harsh”.

Part 7 of the CAR Act

1. [19]

   Division 2 of Part 7 of the CAR Act deals with petitions to the Governor, Division 3 deals with applications to the Supreme Court, Division 4 deals with inquiries into convictions and sentences and Division 5 deals with the function of this Court in addressing applications to quash convictions that arise from the invocation of Divisions 2 to 4. Section 84 is found within Division 5.

2. [20]

   With Division 2, ss 76 and 77 relevantly provide:

3. [21]

   In Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [35], the Court of Appeal observed as follows in relation to s 76:

4. [22]

   The distinction drawn in this passage from Folbigg between a “review of a conviction or sentence” and the exercise of the pardoning power was significant to the conclusion in that case that the outcome of an inquiry into a conviction was amenable to judicial review (at [40]). It is also significant to this case in that it confirms that that the subject matter of Part 7 is not the exercise of the pardoning power per se but the initiation and conduct of inquiries into convictions and sentences and the consequences that flow from the reports of those inquires.

5. [23]

   Consistent with the above passages from Osland and Folbigg, if the request for the exercise of the pardoning power is based on something that is not amenable to such an inquiry, for example because it is purely based on compassionate grounds, then it is difficult to see how s 77 can be usefully engaged. The inquiry that may be ordered under s 77(1)(a) is “into the conviction or sentence” and not into the potentially wider circumstances that may engage the pardoning power. Similarly, the referral of the whole case by the Attorney General under s 77(1)(b) is to be treated as an appeal against conviction or sentence under the Criminal Appeal Act 1912 (s 86). As already stated, at least so far as a conviction is concerned, purely compassionate considerations would have no role to play in determination of any such referral.

6. [24]

   Within Division 3, ss 78(1), 79(1) and 79(2) provide:

7. [25]

   Like s 77(1)(a) and (b), s 79(1) enables the Court to either order an inquiry or refer the whole of the case to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (see also s 86).

8. [26]

   Within Division 4, s 81 governs the procedure at an inquiry that is directed under either s 77(1)(a) or s 79(1)(a). Section 82 provides:

9. [27]

   Thus, the result of s 82 being engaged is that the Governor will either receive a report on the inquiry directly pursuant to s 82(1) or will receive that report and a further report from the Supreme Court pursuant to s 82(3). In both such cases the Governor can then dispose of the matter in such manner as the Governor considers “just” (s 82(4)). Clearly one such manner of disposal is the exercise of the “pardoning power” including the power to grant a free pardon. As noted, even if that power was exercised it would still leave the conviction standing. As further explained below, one of the most important changes introduced by this scheme of review of convictions was the introduction of s 82(2) which enables the judicial officer who conducts the inquiry to refer the matter to this Court to quash the conviction in the event they consider there was a reasonable doubt about guilt (or a similar doubt about a matter affecting the nature or severity of the sentence).

10. [28]

    As noted, Division 5 deals with matters referred to this Court. Sections 86 and 87 deal with the manner in which the Court is to deal with references or requests under s 77(1)(b), s 79(1)(b) or s 77(1)(c). Sections 84, 85 and 88 provide:

11. [29]

    Section 84 is clearly facultative and not just declaratory. It is an additional source of jurisdiction for this Court. Absent the granting of a free pardon and, on the respondent’s construction, the conduct of an inquiry under Division 4, this Court would not have jurisdiction under the Criminal Appeal Act 1912 to hear an appeal from the conviction entered by Blanch CJDC because the proceedings before his Honour were not on indictment (Criminal Appeal Act, s 5(1)). However, the question raised by this application is whether the conferral of jurisdiction by ss 84 and 85 is predicated on an inquiry having been conducted under Division 4.

12. [30]

    The task of statutory construction begins with a consideration of the text of the provisions (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]) however that means a consideration of the whole of the provisions as well as a consideration of the particular provision in context (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28 at [69]).

13. [31]

    On its face, s 84(1) suggests that a person such as the applicant or someone acting on their behalf can apply to this Court to quash the conviction if a free pardon has been granted and without the necessity for an inquiry under Division 4 to have been conducted. However, the balance of the provisions of Part 7 suggest that s 84 cannot be invoked without an inquiry into the conviction having been conducted and reported on. Thus, s 85(1)(b)(i) mandates the consideration of “the” report on the matter that is prepared by the judicial officer “under s 82” which can only mean the report prepared under s 82(1). Subsection 85(1)(b)(ii) also mandates consideration of “any” report prepared by the Supreme Court under s 82, which can only mean a report prepared under s 82(3). These provisions suggest that the only pathway that could have led to an application under s 84 is via an inquiry under Division 4 because such an inquiry must have yielded a report under s 82(1) and might, depending on who directed the inquiry take place, yield a report from the Supreme Court under s 82(3). If, as contended for by the applicant, there does not have be an anterior inquiry under Division 4 then there is no means by which the command in s 85(1)(b)(i) to consider the report of the inquiry can be given effect to.

14. [32]

    This leads to the larger question of how the Court could consider the quashing of the conviction if there is no report produced under s 82. By the operation of s 85(1)(c), no evidence other than the reports produced under s 82 are to be admitted without leave. If say a free pardon was granted on compassionate grounds or a belief that the operation of a law was unduly harsh, as appears to be the case here, on what basis is this Court to exercise the function of considering whether or not to quash the conviction? During argument on the application, one answer to that contention that was suggested was s 85(4) which invokes the provisions of Parts 3 and 4 of the Criminal Appeal Act 1912. Those parts include ss 5 and 6 of that Act, the latter of which contains the three limbs upon which convictions on indictment are challenged in this Court. However, their application is still problematic in that, on this scenario, “the” report referred to in s 85(1)(b) does not exist, any material to be relied on in support of the application must be the subject of a grant of leave and, as noted, the free pardon may have been granted for reasons that bear no resemblance to any matter that falls within s 6 of the Criminal Appeal Act.

15. [33]

    One textual matter supporting the applicant’s construction is s 84(4) in that, in stating that “an application may not be made in respect of a free pardon arising from an inquiry under Division 4”, that provision appears to accept that an application can be made in respect of a free pardon that does not arise from an inquiry under Division 4. There is some force in that, but it does not overcome the significance of the report(s) prepared under s 82 to this Court’s determination of the application. The better view is that s 84(4) sits with s 82(2) and s 88. Section 82(2) enables the judicial officer who conducts the inquiry, of their own motion, to refer the matter this Court. In that event s 88 is engaged. Section 88 operates so that where the application concerns a conviction then it is to be treated as though it had been made under s 84(3) with ss 84 and 85 applying accordingly (s 88(1)). In that event there will be a report under s 82(1) and the provisions of s 85(1)(b) can be sensibly applied. Section 84 can be invoked in circumstances where, following the provision of the judicial officer’s report, the Governor grants a free pardon but the judicial officer does not exercise the power under s 82(2). In that case s 84 empowers the grantee of the pardon or another person acting on their behalf to apply to this Court to have their conviction set aside. Subsection 84(4) simply ensures that s 84 cannot be invoked if the matter has already come to this Court via s 82(2) and s 88.

16. [34]

    This construction of s 84 gives effect to s 85 and reconciles the role of and limitations upon this Court in considering whether to quash a conviction with the description in Osland of the circumstances in which a pardon may be granted and is consistent with the above passage from Folbigg. That said, it can be accepted that it involves a substantial reading down of the apparently plain words of s 84(1) and a limitation on what may be otherwise implicit from s 84(4). Nevertheless, a consideration of the Extraneous Materials and the legislative history of Part 7 confirm that the narrower construction of s 84 suggested by the respondent is to be preferred (Interpretation Act 1987, s 34(1)).

17. [35]

    Part 7 of the CAR Act in its current form was originally introduced into the Crimes Act 1900 by the Crimes Legislation (Review of Convictions) Amendment Act 1993 which came into effect on 14 November 1993. It introduced Part 13A which was later removed and re-enacted as Part 7 of the CAR Act upon its passage in 2001. The Crimes Legislation (Review of Convictions) Amendment Act 1993 repealed former s 475 of the Crimes Act which relevantly provided:

18. [36]

    The Crimes Legislation (Review of Convictions) Amendment Act 1993 also repealed former s 26 of the Criminal Appeal 1912 which provided:

19. [37]

    Thus, former s 475(1) of the Crimes Act 1900 allowed either the Governor or the Supreme Court to order any inquiry by a “prescribed person”. Former s 475(4) provided that, if the inquiry was undertaken at the direction of the Governor, then the report of the inquiry (and the depositions) should be sent to the Governor. If the inquiry was undertaken at the direction of the Supreme Court, then the report was sent to the Supreme Court which was then to report to the Governor. Ultimately, the matter was to be disposed of by the Governor as appeared to be “just”. Section 26 of the Criminal Appeal Act conferred on a Minister the power to refer to a request for the exercise of the Governor’s pardoning power to the Court of Criminal Appeal. One matter that was lacking from this scheme was any direct pathway from the outcome of an inquiry into a conviction to this Court to obtain an order to quash a conviction. The omission was significant because, as noted above, although the Governor could grant an unconditional or free pardon that would still leave the conviction in existence. The only body then and now that could quash the conviction was this Court.

20. [38]

    To address this, Part 13A included a new s 474H into the Crimes Act 1900 which was not relevantly different to the current s 82 and new ss 474I to 474N which were not relevantly different to the current ss 83 to 88. In describing the effect of these provisions, the Minister stated in his Second Reading Speech (Hansard, Legislative Assembly 27 October 1993):

21. [39]

    This passage confirms that the amendment that became the current s 82(2) of the CAR Act was introduced to allow a pathway into this Court to quash a conviction that had been the subject of an inquiry by a judicial officer who was providing their report to the Governor. Section 82(2) conferred on that judicial officer a discretion to also refer the matter to this Court. This passage also makes clear that the amendments that became ss 84 and 85 were inserted to allow a person who was the subject of such a report and received a free pardon to themselves apply to the Court to quash their conviction even if the judicial officer did not take that course.

22. [40]

    The operation of these provisions is borne out by considering the fate of both of the persons referred to in the above extract from the Second Reading Speech, that is Douglas Rendell and Siegfried Pohl. Each of them had been the subject of inquiries by a judicial officer into their convictions. Both of them received a free pardon and both made their own application under the equivalent of s 84 (then s 474J) for their convictions to be quashed. Both applications were successful (R v Pohl, unreported, 17 December 1993, Gleeson CJ, James J and Dunford J: R v Rendell, unreported, 22 June 1994, Gleeson CJ, Hunt CJ at CL and Badgery-Parker J). In both cases, the Court had before it the reports into the convictions. In Rendell, Badgery-Parker J noted that the “court has its own responsibility to consider the matter in the light of the material [before it], that the verdict is seen to be unsafe and unsatisfactory and to have resulted in a miscarriage of justice” (at pp 1 to 2). It is difficult if not impossible to see how that could occur under the above provision if there was no such report.

23. [41]

    Neither of the judgments of this Court in Pohl or Rendell considered, or needed to consider, whether the then s 474J (now s 84) could be invoked without the report of an inquiry under Division 4 of Part 13A (now Division 4 of Part 7 of the CAR Act) or its predecessors. However, when considered with the second reading speech, they confirm what is otherwise suggested by the text and context of Part 7, namely that s 84 and s 82(2) were introduced to address the specific problem that an inquiry into a conviction might lead to a pardon but did not provide a means of enabling this Court to quash the conviction.

24. [42]

    In his careful and interesting submissions, Counsel for the applicant sought to downplay the significance of the second reading speech by pointing to the observation of Spigelman CJ in Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [12] that “statements of intention as to the meaning of words by ministers in a Second Reading Speech … are virtually never useful … [and] … rarely, if ever, ‘capable of assisting in ascertainment of the meaning of the provisions’ within s 34 (1) of the Interpretation Act 1987”. This observation was directed to the use of a statement of intention of the meaning of the words of a statute as opposed to identifying the mischief that the provisions were designed to remedy and the purpose which was sought to be achieved (see Harrison v Melhem at [162] per Mason P). The latter is their present usage.

25. [43]

    In this applicant’s case, the possible pathways into this Court to seek the quashing of his convictions, is either via a decision by the Attorney-General under s 77(1)(b), a referral by the Supreme Court under s 79(1)(b) or via s 82(2) or s 84 following an inquiry under Division 4 of Part 7. In each such case, there would first be a “review” or inquiry into the “conviction” rather than reliance on the type of material he provided when he obtained a free pardon. Nothing in this judgment should be taken as precluding those possibilities (or should be taken as addressing the merits or otherwise of Blanch CJDC’s judgment).

26. [44]

    Finally I note that in Huynh v Attorney-General (NSW) [2021] NSWSC 297 at [61] Basten JA (with whom Bathurst CJ, Gleeson JA and Payne JA agreed) observed in relation to an application under s 84 of the CAR Act that “[i]t appears that such a process must by implication be conditional upon the completion of an inquiry under Division 4, and the preparation of reports under s 82 by the judicial officer.” These reasons and the construction of s 84 that I propose are in accordance with his Honour’s observation.

Conclusion

1. [45]

   It follows that I do not consider that this Court has jurisdiction to entertain the application to quash the applicant’s conviction.

2. [46]

   I propose the following order:

   1. (1)

      The Application be dismissed.

3. [47]

   BELLEW J: I have had the advantage of reading in draft the judgment of Beech-Jones CJ at CL. I agree with the order proposed, for the reasons his Honour has given.

4. [48]

   HAMILL J: I agree with the order proposed by the Chief Judge at Common Law and with his Honour’s reasons.