Bevan Spencer Von Einem v Kenneth Trevor Griffin and Others No. Scgrg-98-627 Judgment No. 6715 Number of Pages 6 Administrative Law

[1998] SASC 6715

VON EINEM  v  GRIFFIN & ORS

CRIMINAL

DUGGAN J

This is an application for leave to serve a summons for judicial review.  The respondents to the application oppose the granting of leave and, in the alternative, seek to have the summons struck out.

The application for judicial review is made by Bevan Spencer von Einem (the plaintiff) who is serving a sentence of life imprisonment for the murder of Richard Kelvin.   The plaintiff was convicted on 5th November 1984 and unsuccessfully appealed against his conviction.   The High Court of Australia refused leave to appeal to that court.

In 1997 solicitors acting for the plaintiff became aware of material which had been in the possession of the police at the time of the trial and which had not been disclosed to the defence.  The plaintiff claims that the information should have been disclosed and that the presentation of his case at trial was prejudiced by the non-disclosure.   The information relates mainly to police surveillance of the plaintiff and a statement of a person who claimed to have seen Richard Kelvin in Rundle Mall at a time inconsistent with the prosecution case as it was presented at trial.   In the affidavit accompanying the application it is claimed that there has been a miscarriage of justice by reason of the non-disclosure of the information.

Following the discovery of this information the plaintiff presented a petition to His Excellency the Governor praying for the exercise of Her Majesty’s mercy and requesting that the matter be referred to the Full Court of the Supreme Court of South Australia pursuant to s369(a) of the Criminal Law Consolidation Act 1935. Section 369 of that Act provides as follows:

“Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty’s mercy having reference to the conviction of a person on information or to the sentence passed on a person convicted, may, if he thinks fit, at any time, either -

(a).... refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or

(b).... if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly.”

.................. In an affidavit sworn on 11th May 1998 the Attorney-General stated that he had the responsibility of providing advice to His Excellency the Governor on matters relating to the exercise of the prerogative of mercy.   He said that on receipt of the petition he sought an independent opinion on the matters raised therein from Mrs Iris Stevens, a former judge of the District Court.   He also sought advice from the Solicitor-General.   The Attorney-General went on to say that he accepted the advice he was given by the Solicitor-General and informed the Premier that no further action should be taken in respect of the petition.  The memorandum of advice to the Premier contains the following statement:

“Having received advice from the Solicitor-General (copy attached) I concur with his views that it is recommended that his Excellency the Governor take no further action in respect of the petition as it is not reasonably possible that a miscarriage of justice has occurred.”

......... His Excellency’s Official Secretary then wrote to the plaintiff’s solicitors in the following terms:

“I refer to my letter of 23rd December, 1997 in response to your Petition to His Excellency the Governor on behalf of Mr. B. Von Einem.

His Excellency referred your Petition to his Ministers who have now advised the Governor to take no further action in respect of the Petition as it is not reasonably possible that a miscarriage of justice has occurred.

I have to inform you that His Excellency has accepted this advice.”

Mr Abbott QC, for the plaintiff, argued that the presentation of the petition gave rise to the consideration of two powers: the exercise of the prerogative of mercy by the Governor and the reference by the Attorney-General under the statutory power conferred by s369.   Mr Abbott said that, although the two powers were related, they were nevertheless separate and distinct.    He stated that the exercise of the prerogative of mercy went only to the question of amelioration of penalty and did not affect the conviction, whereas if the whole case were referred to the Full Court pursuant to s369 the case would be heard and determined as in the case of an appeal by a person convicted.

It was argued on behalf of the plaintiff that the Governor, on the advice of the government, applied an incorrect test in considering the petition, namely, that there was no reasonable possibility of a miscarriage of justice.  It was also argued that no consideration was given to the various ways in which the prerogative might be applied.   As for the exercise of the power under s369, it was argued that there had been a total failure by the Attorney-General to consider that power and, in the alternative, if the power had been considered, the wrong test was used, it being the same test applied by the Governor, namely, that there was no reasonable possibility of a miscarriage of justice.

As a result of discussion which took place during the hearing of this application, a further affidavit has been sworn by the Attorney-General.   In that affidavit he states that he did consider whether he should refer the case to the Full Court pursuant to s369, but decided not to do so because it did not seem that there was a reasonable possibility that a miscarriage of justice had occurred.  That may well put an end to the argument that a reference was not considered at all.   On the other hand the issue remains as to whether the exercise of the discretion should be circumscribed by a test and, if so, what test should be applied.  

According to the plaintiff’s argument, the test to be applied by the Attorney-General was whether there was an arguable case for a miscarriage of justice.   It was said that part of this inquiry involved considering whether it was arguable that “some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial”.  (Davies & Cody v The King (1937) 57 CLR 170 at 180.) It followed, said Mr Abbott, that the inquiry should not be restricted to guilt or innocence, because it was also relevant to ask whether the plaintiff had been accorded due process. It was pointed out that knowledge of the information which was not disclosed could well have resulted in the defence pursuing other lines of inquiry or adopting different tactics at the trial. (R v CPK unreported decision of NSW Court of Criminal Appeal No. 60330 of 1994.)   According to the argument, the test which was inherent in the advice given to the Governor was too narrow.  Furthermore it is claimed that the Attorney-General either made no decision in respect of the reference under s369 or, if he did, the test which he applied was the same narrow test upon which the advice to the Governor was based.

The threshold issue in this matter is whether decisions of the Governor and the Attorney-General in this area are reviewable by the court or, more appropriately bearing in mind the nature of the application before me, whether it is arguable that a court could and would review such decisions.   There is authority for the view that decisions in relation to the prerogative of mercy are not reviewable by a court.  In de Freitas v Benny [1976] AC 239 at 247 Lord Diplock commented that “Mercy is not the subject of legal rights. It begins where legal rights end”.

However the relevant authorities and considerations were reviewed extensively by the New Zealand Court of Appeal in Burt v Governor-General [1992] 3 NZLR 672. In that case it was necessary to consider whether the royal prerogative of mercy to pardon a man found guilty of murder was reviewable by the courts.

The joint judgment recognised that in recent years “the mere fact that a decision has been made under the prerogative does not exempt it from review in the Courts.  The test is rather whether the subject-matter of the decision is justiciable.” (p678).  The court went on to say:

“The prerogative of mercy is a prerogative of power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons.  On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge.  There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal.”

The court concluded that a case-by-case approach was necessary.  In deciding whether review was appropriate it was important “to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour.   As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes.”  (p681)

The court specifically referred to the spate of recent cases in the United Kingdom in which the Court of Criminal Appeal, on references by the Home Secretary, had quashed convictions on the ground that they were unsafe and unsatisfactory.   Some of the cases turned on failure by the prosecution to disclose relevant material.

The court then referred to safeguards against such injustices which exist in New Zealand and concluded:

“Bearing in mind the safeguards there appears to be no reason to think that the balance currently struck in New Zealand is wrong.  In particular no pressing reason has been made out for altering the practice regarding the Royal prerogative of mercy.  While accepting that it is inevitably the duty of the Court to extend the scope of common law review if justice so requires, we are not satisfied that in this field justice does so require, at any rate at present.”  (p683)

Burt’s case was referred to by the Court of Appeal (Criminal Division) in R v Secretary of State for the Home Department, Ex Parte Bentley [1994] QB 349. It was noted in the joint judgment that the New Zealand Court of Appeal would have been prepared to review the exercise of the prerogative of mercy if it felt that justice required it. The judgment continued:

“Finally we have been referred to a passage from Lewis, Judicial Remedies in Public Law (1992), p.21:

‘In principle, a failure to consider exercising the power to grant a pardon should be reviewable, at least if an individual can demonstrate that there is some reason why the Home Secretary should consider the case.  It is also difficult to see why a decision to refuse a pardon should not also be reviewable in appropriate circumstances, for example, where the allegation is that there has been a failure to consider relevant material, or a failure to act in accordance with any relevant guidelines, or if there is an error of law as to the elements of the offence for which the pardon was sought.’

Mr. Pannick relies on this passage.  He argues that the prerogative of mercy is exercised by the Home Secretary on behalf of us all.  It is an important feature of our criminal justice system.  It would be surprising and regrettable in our developed state of public law were the decision of the Home Secretary to be immune from legal challenge irrespective of the gravity of the legal errors which infected such a decision.  Many types of decisions made by the Home Secretary do involve an element of policy (e.g. parole) but are subject to review.

We accept these arguments. The C.C.S.U. case [1958] A.C. 374 made it clear that the powers of the court cannot be ousted merely by invoking the word ‘prerogative’. The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so? Looked at in this way there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.

We conclude therefore that some aspects of the exercise of the Royal Prerogative are amenable to the judicial process.  We do not think that it is necessary for us to say more than this in the instant case.  It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.”

Finally, in The Queen v Toohey Ex parte Northern Land Council (1981) 151 CLR 170 Mason J referred to the changed attitude to judicial review of the acts of the Crown or its representatives. His Honour also referred to the greater readiness of the courts to review the exercise of a statutory discretion. For this reason the authority is also relied upon by the plaintiff in support of the argument that the Attorney-General’s actions in relation to the discretion provided for in s369 can be reviewed.

The Solicitor-General effectively demonstrated the hurdles in the way of the plaintiff’s success in having this matter reviewed by a court.  There is no denying that they exist.  On the other hand it is not my function to decide the merits of the application.  I apply the same test to the leave to serve issue and the application to dismiss issue.   Has it been clearly demonstrated that the plaintiff’s case is so untenable that it cannot possibly succeed?   I find myself unable to say that the plaintiff’s application for review of both the prerogative decision and the exercise of the s369 discretion is unarguable.

For these reasons I give leave to serve the summons for judicial review and I refuse the application to strike out the summons.

In view of the nature of the case and the issues involved I refer the hearing of the summons to the Full Court.