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Armstrong v The Queen

Armstrong v The Queen

Case [2021] NSWCCA 311 16 December 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Armstrong v R [2021] NSWCCA 311
Hearing dates: 10 September 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Before: Beech-Jones CJ at CL at [1]
Bellew J at [47]
Hamill J at [48]
Decision:
The Application be dismissed

Catchwords:
APPEAL – applicant convicted of offences in 2007 – received unconditional pardon in 2011 – applied to quash his convictions under s 84 of Crimes (Appeal and Review) Act 2001- whether application under s 84 can only be made if convictions subject to inquiry under Division 4 of Part 7 – Held – no jurisdiction to determine application.

Legislation Cited:
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Legislation (Review of Convictions) Amendment Act 1993
Criminal Appeal Act 1912
Interpretation Act 1987
Mental Health (Criminal Procedure) Act 1990

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180
Eastman v DPP (2003) 214 CLR 318; [2003] HCA 28
Folbigg v Attorney General of New South Wales [2021] NSWCA 44
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
Holzinger v Attorney-General of Queensland (2020) 5 QR 314; [2020] QCA 165
Horwitz v Conner (1908) 6 CLR 38; [1908] HCA 33
Huynh v Attorney-General (NSW) [2021] NSWSC 297
Kelleher v Parole Board (NSW) (1984) 156 CLR 364; [1984] HCA 77
Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275; [2008] HCA 37
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28
R v Foster [1985] 1 QB 115
R v Pohl (17 December 1993, unrep)
R v Rendell (22 June 1994, unrep)
The Queen v Toohey; ex parte Northern Land Council (1980) 151 CLR 170; [1981] HCA 74

Texts Cited:
Evatt, The Royal Prerogative, The Law Book Company Limited, 1997

Category: Principal judgment
Parties: Phillip Armstrong (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
E Balodis (Crown)
Solicitors:

File Number(s): 2007/15961

Judgment

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v The Queen

Details

AGLC: Armstrong v The Queen [2021] NSWCCA 311
Case: [2021] NSWCCA 311
Decision Date: 16 December 2021

CaseChat Overview and Summary

The appellant was convicted of offences in 2007 and subsequently received an unconditional pardon in 2011. He applied to the Supreme Court to quash his convictions under section 84 of the Crimes (Appeal and Review) Act 2001. The primary issue before the court was whether the applicant's application could only be made if the convictions were subject to an inquiry under Division 4 of Part 7 of the Act. The appellant argued that despite receiving a pardon, his convictions remained on his record, affecting his employment opportunities. The court had to determine if it had the jurisdiction to consider the application under section 84 when the convictions were not subject to an inquiry under Division 4 of Part 7.

The court examined the statutory provisions and found that the language of section 84 was clear in limiting the application to instances where the conviction is subject to an inquiry. Given that the appellant's convictions were not subject to such an inquiry, the court concluded that it lacked jurisdiction to determine the application. The court emphasised that the statutory framework set out specific conditions under which an application could be made, and these conditions were not met in this case. Consequently, the court dismissed the application, finding that it could not quash the convictions as there was no legal basis to do so under the circumstances presented.

The Supreme Court's decision underscores the importance of adhering to statutory requirements when making applications to quash convictions. The court's ruling highlights that the provisions of the Crimes (Appeal and Review) Act 2001 must be strictly followed, and any application under section 84 must meet the specified conditions, including the requirement for the conviction to be subject to an inquiry under Division 4 of Part 7. As the appellant's convictions did not meet these conditions, the court had no jurisdiction to grant his application.

Orders