Censori v Adult Parole Board of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0032

ERIS CENSORI	Appellant
v
ADULT PAROLE BOARD OF VICTORIA	First Respondent
and
HIS EXCELLENCY THE HONOURABLE ALEX CHERNOV AC QC	Second Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Third Respondent

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JUDGES:	WARREN CJ, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2015
DATE OF JUDGMENT:	17 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 254
JUDGMENT APPEALED FROM:	[2015] VSC 106 (Kaye JA)

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HABEAS CORPUS – Appellant sentenced to death by Supreme Court of Western Australia – Sentence commuted to life imprisonment by executive pardon – Transferred to Victoria under Prisoners (Interstate Transfer) Act 1983 – Released on parole for period of natural life by Victorian Governor under Sentencing Act 1991 s 107(1)(b) – Whether parole order valid and of continuing effect – Whether parole conditions valid – Whether parole order matured into full pardon.

PRACTICE AND PROCEDURE – Habeas corpus – Application to Supreme Court of Victoria for writ of habeas corpus refused – Second application to Supreme Court for writ of habeas corpus – Whether abuse of process – Whether application made on same grounds – Supreme Court (General Civil Procedure) Rules 2005 r 57.04.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Appeared in person
For the First Respondent	No appearance
For the Second Respondent	No appearance
For the Third Respondent	Mr C J Horan	Victorian Government Solicitor’s Office

WARREN CJ
FERGUSON JA
McLEISH JA:

This is an appeal from a decision of a judge sitting in the Trial Division dismissing the appellant’s application for a writ of habeas corpus.[1] The application turned on the operation of s 27 of the Prisoners (Interstate Transfer) Act 1983 (the ‘Victorian Transfer Act’), which deems a sentence imposed by an interstate court on a prisoner who has been transferred to Victoria under the legislative scheme to be a sentence imposed by a Victorian court.
[1]Censori v Chairman, Adult Parole Board & Ors [2015] VSC 106 (‘Reasons’). Leave to appeal to this Court is not required for an appeal of this kind: Supreme Court Act 1986, s 14A(2)(a).

We would dismiss the appeal, for the following reasons.

Background

The appellant was found guilty of wilful murder in the Supreme Court of Western Australia on 17 June 1982 and sentenced to death. On 31 May 1983, consistently with the policy of the government of Western Australia in respect of capital punishment,[2] the Governor of that State pardoned the appellant, subject to the condition that he be imprisoned for life.[3] Provision for this to occur was found in s 679 of the Criminal Code 1913 (WA) (the ‘Criminal Code’), which relevantly provided:

In any case in which the Governor is authorized to extend the Royal mercy conditionally to an offender under sentence of death, he may extend mercy on condition of the offender being the subject of an order of strict security life imprisonment or on condition of the offender being imprisoned, with or without hard labour, for life …
Any such extension of mercy is to be signified in writing to the Chief Secretary, and the Chief Secretary is required thereupon to allow the offender the benefit of a conditional pardon, and to make an order of strict security life imprisonment or that he be imprisoned with or without hard labour … Such allowance or order has the effect of a valid sentence passed by the Court before which the offender was convicted. An order of strict security life imprisonment shall specify the place in which the offender is to be imprisoned.
…

[2]Censori v Holland [1993] 1 VR 509, 510 (Harper J).

[3]The primary judge stated that the appellant found himself in an anomalous situation by which, as a result of a hiatus in the law, he appeared to be serving a sentence of imprisonment exceeding, or substantially exceeding, that to which he would now be subject had he been convicted in this State. It should be observed, however, that had the appellant been convicted of murder in Victoria in 1982, he would have been subject to a mandatory sentence of life imprisonment (subject to becoming eligible from 1 July 1986 to seek a minimum term): see Crimes (Amendment) Act 1986; Hunter v The Queen (2013) 40 VR 660, 673–4 [46]–[49].

The pardon was evidenced by a minute of the Executive Council of Western Australia dated 31 May 1983, signed by the Premier and the Attorney-General, and signed as ‘approved’ by the Governor, which stated:

The Council respectfully advises His Excellency the Governor be advised that in exercise of the Royal Prerogative and pursuant to Section 679 of the Criminal Code, 1913-1982 he should extend the Royal Mercy to ERIS CENSORI in respect of the sentence of death that was passed on him on the 17^th day of June, 1982 by the Honourable Mr Justice Wallace in the Supreme Court at Perth following the conviction by jury after trial of the said ERIS CENSORI of the crime of wilful murder, subject to the condition that the said ERIS CENSORI serve a sentence of imprisonment for life.

On 30 June 1983, the Western Australian Minister for Prisons signed an instrument directing the Director of the Prisons Department of Western Australia to imprison the appellant in Her Majesty’s Prison at Fremantle ‘at hard labour for the term of life’. It is not now in dispute that this instrument was ineffective as an order of life imprisonment under s 679 of the Criminal Code. However, a similar order was subsequently signed on 13 October 1992 by the Minister for Racing and Gaming, on the basis that an Order in Council dated 18 October 1985 had caused any reference in any law to the Chief Secretary to be construed as a reference to the Minister for Racing and Gaming.

In the meantime, the appellant sought a transfer to Victoria for welfare reasons under the cooperative legislative scheme dealing with the interstate transfer of prisoners and, on 23 December 1986, the Western Australian Minister for Prisons issued an order to transfer the appellant to this State. In January 1987 the appellant was transferred to Victoria under the Victorian Transfer Act, and imprisoned at Pentridge Prison, Coburg.

Following an unsuccessful application to the Supreme Court of Victoria under s 18A of the Penalties and Sentences Act 1985 for an order fixing a minimum term to his life sentence,[4] in 1992 the appellant applied to the Supreme Court for a writ of habeas corpus. The application was heard by Harper J, before whom the appellant argued that his detention was unlawful on a number of grounds. Relevantly, he submitted that the conditional pardon extended to him by the Governor of Western Australia was not capable of founding an order for his transfer to Victoria under the Prisoners (Interstate Transfer) Act1983 (WA) (the ‘WA Transfer Act’). This was because, it was said, the relevant provisions of that Act operated in respect of a ‘sentence’ of imprisonment and the only sentence to which the appellant had been subject was the sentence of death, imposed by the Supreme Court of Western Australia. His life imprisonment was, on the other hand, the result of a conditional pardon which was not, he submitted, equivalent under Western Australian law to a sentence imposed by a court.[5] The appellant further submitted that s 27 of the Victorian Transfer Act, on its proper construction, failed to translate the Governor’s conditional pardon into a sentence of imprisonment deemed to have been imposed on him by a corresponding Victorian court.[6] Harper J dismissed the appellant’s application. The appellant did not appeal that decision.
[4]The application for a minimum term was rejected by the Prothonotary because of the decision in Porter v The Queen [1990] VR 897; see now s 28(8) of the Victorian Transfer Act; Crea v The Queen (2011) 206 A Crim R 385.
[5]Censori v Holland [1993] 1 VR 509, 516.
[6]Ibid 519.

In the course of his reasons, Harper J noted that, as a person serving an indeterminate period of incarceration, the appellant was not eligible on the normal criteria for entrance into pre-release training courses. Completion of such courses was, at that time, a prerequisite to the Adult Parole Board’s consideration of a prisoner for release on parole. The judge said that, as a result, he felt ‘considerable sympathy’ for the appellant’s position. He went on to observe that, if ‘the true position is that the plaintiff would be granted parole were it not for his status as a person incarcerated pursuant to s 27 of the [Victorian Transfer Act], then it seems to me that consideration should be given to the exercise of the prerogative in his case’.[7]
[7]Ibid 520.

On 20 May 1994, acting on the advice of the Premier, the Governor of Victoria exercised the power under s 107(1)(b) of the Sentencing Act 1991 (the ‘Sentencing Act’) to extend mercy to ‘any person under sentence of imprisonment’ by directing that the appellant be released, subject to nine conditions which were described in the instrument as ‘parole conditions’ (the ‘Release Order’). Argument before this Court proceeded on the basis that, in doing so, it was likely that the Premier’s advice to the Governor had been informed by a recommendation of the Adult Parole Board, which had in turn taken into account the observations made by Harper J in Censori v Holland, set out above. There was, however, no evidence to this effect before the primary judge.

The conditions of the appellant’s release required him to remain under the supervision of a community corrections officer for a period of five years following his release (condition 1), and imposed on him a number of reporting and other associated requirements. Relevantly for the purposes of this appeal, condition 5 required the appellant to ‘carr[y] out the lawful instruction of the community corrections officer’, and condition 9 provided that ‘the conditions of this Order be not varied except with the expressed permission of the Adult Parole Board’.

In accordance with the Release Order, the appellant was released from prison on 30 June 1994. Prior to his release, on 6 June 1994, he was informed in writing by the Adult Parole Board of the Release Order and its conditions. The Board informed him that he would remain on parole for the balance of his sentence, that his period of supervision would expire on 29 June 1999 and that the Board ‘may cancel [his] parole order at any time’. He was required to acknowledge the conditions of his release and to undertake to comply with them by signing the document.

Approximately 10 years after his period of supervision expired, the appellant, who is an Italian citizen and permanent resident of Australia, applied to the Department of Immigration and Citizenship for Australian citizenship. That application was refused on 23 March 2009 by a delegate of the Minister for Immigration and Citizenship, on the basis that the Minister was prohibited under s 24 of the Australian Citizenship Act 2007 (Cth) from conferring citizenship upon the appellant. That was because, notwithstanding that the appellant had been released on parole, he was serving the remainder of a sentence of imprisonment which left him liable to being required under law to serve the whole or part of that sentence. It appears that the Adult Parole Board had informed the Department on 6 February 2009 that the appellant was on parole in Victoria for life.[8]
[8]It may also be noted that counsel for the appellant in an unrelated proceeding in 2006 described his client as a ‘lifetime parolee’: DPP v Censori [2006] VSC 486, [21].

The appellant wrote to the Adult Parole Board on 19 August 2009, requesting that the question whether or not he remained subject to a sentence of imprisonment be considered by the Board as a question of law under s 66(2) of the Corrections Act 1986 (the ‘Corrections Act’). On 27 August 2009, the appellant was informed that the Board had met and that the Chairperson of the Board had determined that, ‘as a matter of law’, the appellant was ‘on parole for the period of [his] natural life’.

Several years later, on 14 August 2013, the appellant was informed by Community Correctional Services that, as a result of legislative reforms effected by the Justice Legislation Amendment (Cancellation of Parole and Other Matters) Act 2013, the circumstances in which his parole would be cancelled automatically had changed. He was further informed by letter dated 4 June 2014 that, as a result of the Corrections Amendment (Breach of Parole and Other Matters) Regulations 2014, he would be issued with a new parole order (the ‘Varied Parole Order’). That order, which was issued by the Adult Parole Board on 12 June 2014 with effect from 1 July 2014, imposed fresh reporting, supervision and other obligations on the appellant.

The prisoner transfer legislation

The transfer of the appellant from a Western Australian prison to a Victorian prison took place pursuant to a national cooperative scheme governing such transfers. Relevantly for present purposes, s 5 of the WA Transfer Act provided for the Western Australian Minister for Prisons to give to the corresponding Minister of a participating State a written request asking him to accept the transfer of a prisoner to that State, upon having received a written request from the prisoner and being of the opinion that the transfer would be in the interests of his or her welfare.

Section 10 of the Victorian Transfer Act enabled the Victorian Minister, on receiving such a request, either to refuse or consent to it, and to give written notice to the Western Australian Minister of that decision. Upon receipt of consent, s 6 of the WA Transfer Act empowered the Western Australian Minister to issue an order for the transfer.

The WA Transfer Act provided for the transfer to Victoria to take place in the custody of an escort. Section 27 of the Victorian Transfer Act then provided for the Western Australian sentence to be given effect in Victoria. It relevantly stated:
Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria—
(a)any sentence of imprisonment imposed upon him by a court of the participating State … shall be deemed to have been imposed upon him …
by a corresponding court in Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had power to impose the sentence and give or make the directions or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.
Section 28 also has relevance to the issues in this appeal. It relevantly provided:

(5) The Governor—
(a)may exercise the royal prerogative of mercy in favour of a person who is subject to a section 27 sentence as if the person were—
(i) an offender convicted in a court of Victoria; [and]
…
(b)in exercising that prerogative, may give effect to any indication given by the Governor of the participating State in which the sentence of imprisonment was imposed upon that person as to what the Governor of the participating State may have done had the person not been transferred to Victoria.

(6) A person who is subject to a section 27 sentence—
…
(b)shall be deemed to be entitled under the remission regulations to any remission of his sentence of imprisonment for which, up to the time of his transfer to Victoria, he was eligible in respect of that sentence of imprisonment in the participating State … and any further remission of sentence under the remission regulations shall be calculated from the time of the arrival of the person in Victoria.

The decision below

On 25 August 2014, the appellant, who was self-represented both on the appeal and in the Trial Division, applied by summons for a writ of habeas corpus, by which he sought his ‘discharge from unlawful imprisonment’. The writ named the Chairman of the Adult Parole Board and the Governor of Victoria as defendants. In effect, the appellant thereby sought to challenge both the assertion by the Adult Parole Board that he remained subject to a life sentence of imprisonment, and the validity of certain conditions imposed on him both by the Release Order and by the Varied Parole Order. There appears to have been some discussion before the primary judge as to whether habeas corpus was an available remedy, given that the appellant was not, at the time of the hearing before the judge, held in custody.[9] As we are of the opinion that the appellant must in any event fail in the appeal, it is unnecessary to express a view as to the availability of the writ in such circumstances.
[9]Reasons [29], [39].

The defendants notified the Court that, in accordance with convention, they did not intend to take an active role in the proceeding. Leave was granted to the Attorney-General to intervene in the proceeding and in order to act as contradictor.

The judge found that the appellant’s submissions resolved to five issues.

The Governor of Western Australia’s conditional pardon

First, the appellant challenged the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy. The appellant contended that there did not exist adequate evidence to establish that the royal prerogative had in fact been validly exercised by the Governor. Further, he submitted that, even if the Governor had validly conditionally pardoned him, s 679 of the Criminal Code relevantly required the Governor to signify the same to the Chief Secretary, who would then in turn have been required to make an order for life imprisonment. Had an order been made under s 679 as required, its effect would have been deemed to be that of a ‘valid sentence’ under Western Australian law. It was accepted that the Chief Secretary made no such order; rather, as already explained, on 30 June 1983, the Minister for Prisons had purported to make an order under s 679 that the appellant be imprisoned for life. The appellant submitted that the Minister for Prisons had no power to make such an order. The appellant also submitted that the later order of the Minister for Racing and Gaming made on 13 October 1992 was ineffective, because by that time s 679 had been amended so as to delete from it the power to commute a death sentence to a sentence of imprisonment.

Accordingly, the appellant submitted that the only sentence upon which s 27 of the Victorian Transfer Act could properly have operated was the sentence of death imposed on him by the Supreme Court of Western Australia on 17 June 1982. As the death sentence was abolished in Victoria in 1975, the appellant contended that he was no longer subject to any sentence in this State.

The primary judge held that the appellant was barred from making the preceding submissions as to his legal status as a transferee. Doing so would constitute an abuse of process, in that it would involve the re-litigation before the Supreme Court of issues that were determined against the appellant by Harper J in the earlier proceeding, and would therefore constitute a collateral attack on the decision of Harper J.[10] In that proceeding, issues as to the effectiveness of the exercise by the Governor of Western Australia of the royal prerogative of mercy to pardon the appellant conditionally were, the primary judge held, directly in issue. The decision by Harper J:

determined the issues of the plaintiff’s status as a person serving a term of life imprisonment in Victoria, consequent upon the exercise by the Governor [of] Western Australia of the royal prerogative of mercy in 1983, and his status upon his transfer to Victoria in 1987, pursuant to the provisions of the Victorian Transfer Act. The plaintiff did not appeal that decision. Thus, the decision constituted a binding authority, between the plaintiff and the defendants in that proceeding, as to his status, namely, as a person subject to a term of life imprisonment in Victoria pursuant to which he was then incarcerated.[11]

The judge was of the view that, in particular, the decision in Vasiljkovic v O’Connor[12] was direct authority for the proposition that in a proceeding for habeas corpus the re-litigation of issues which had been decided in earlier proceedings could constitute an abuse of process.

[10]Ibid [77]–[78].

[11]Ibid [76].

[12](2010) 276 ALR 326.

In the event that he was wrong to conclude that these aspects of the proceeding constituted an abuse of process, the judge went on to address the substance of the appellant’s submissions. He relevantly held that the minute of the Executive Council of Western Australia, dated 31 May 1983 and signed by the Governor, Premier and Attorney-General, and recording the advice of the Council to the Governor that his Excellency should conditionally pardon the appellant, constituted the instrument of pardon granted to the appellant even though it was not in the form in which pardons were historically sealed and delivered.[13]
[13]Reasons [81].

As to the appellant’s legal status under the Victorian Transfer Act, the judge considered that, at the time it was granted, the Governor’s conditional pardon was ‘effective as an order or direction given by law’ to subject the appellant to a sentence of life imprisonment.[14] Notwithstanding the failure of the Chief Secretary subsequently to make an order for life imprisonment, the requirements of s 679 were ultimately met by the allowance and order made by the Minister for Racing and Gaming on 13 October 1992. Under s 679, that order then had the effect of a valid sentence passed by the Supreme Court of Western Australia.[15] The judge went on to explain the way in which, in any event, s 27 of the Victorian Transfer Act operated to pick up and apply the conditional pardon as a deemed sentence of the Supreme Court of Victoria.[16] It will be seen below that in doing so, the judge relied on a form of that provision that post-dated the events in question; ultimately, however, we consider that nothing turned on that matter.
[14]Ibid [83].
[15]Ibid [85].
[16]Ibid [86]–[87].

The effect of the Release Order

Secondly, at first instance the appellant argued that the Governor of Victoria did not have power to grant a pardon in respect of the conditions attached to the pardon extended to him by the Governor of Western Australia. It was submitted that ‘mercy may (not) temper mercy’,[17] and that the only sentence in respect of which the Governor of Victoria had power to make the Release Order was the sentence of death originally imposed by the Supreme Court of Western Australia. As the length of the parole period could not, it was submitted, exceed the nominal sentence, and as the nominal sentence was ‘death’, the appellant argued that, having been released on parole, he was no longer subject to any sentence once the five-year period of supervision imposed by the Release Order had been complied with.[18]
[17]Ibid [16].
[18]Ibid.

The primary judge held that s 107(1)(b) of the Sentencing Act empowered the Governor to extend mercy to any person ‘under sentence of imprisonment’ by directing his or her release on parole. The appellant was such a person by virtue of s 27(1) of the Victorian Transfer Act.

Consistent with the decision of Harper J in Censori v Holland, the primary judge held that s 27(1) of the Victorian Transfer Act had the effect that, upon the appellant’s transfer to Victoria, he was deemed to be subject to a sentence of life imprisonment imposed on him by the Supreme Court of Victoria.[19] That deeming provision, the judge held,

was designed to define the legal status of a transferred prisoner (such as the plaintiff) for the purpose of the application to that prisoner of those aspects of the law of Victoria that relate to the disposition of such a prisoner in this State.[20]

[19]Ibid [91].

[20]Ibid [96].

One such aspect of the law was s 107(1) of the Sentencing Act. Further, s 28(5) of the Victorian Transfer Act gave express power to the Governor of Victoria to extend mercy to a person subject to a sentence that was deemed to have been imposed under s 27 of that Act.

The construction of the Release Order

Thirdly, the appellant made a number of submissions concerning the operation of the Release Order, which were directed to establishing that, once the condition imposing a five-year period of supervision had been complied with, the appellant was no longer subject to a sentence. So far as is relevant to this appeal, he submitted that:

(a) had he been granted parole in Western Australia, the maximum parole period that he could have been required to serve was five years, after which the life sentence would have expired as a matter of law. Accordingly, the conditions of the Release Order should be construed so as not to inflict upon him what were said to be two separate punishments, or expose him to what was said to be ‘double jeopardy’;

(b) had he been granted parole by the Governor of Victoria under s 28(5) of the Victorian Transfer Act, rather than under s 107(1)(b) of the Sentencing Act, s 28(5) would have obliged the Governor to impose upon him the same conditions in respect of his parole as those to which he would have been subject had he remained in Western Australia. The failure of the Governor of Victoria to take into account the situation that would have obtained in Western Australia was said to have denied the appellant natural justice; and

(c) the law of Western Australia should apply to any exercise of the royal prerogative of mercy by the Governor of Victoria in respect of the sentence passed on him, as the law of Western Australia was the ‘lex loci delicti’ in respect of the offence for which he was convicted, or, alternatively, because of the operation of s 118 of the Constitution.

The primary judge held that it was plain that the Release Order did not purport to affect or modify the sentence of life imprisonment to which the appellant was subject, other than by directing his release on parole. Further, it was clear that condition 1 of the Release Order did not prescribe the length of the period of parole; rather, it merely imposed a five-year period during which the appellant was to be under supervision.[21] Even if it were the case (which the judge doubted) that the law of Western Australia had the effect contended for by the appellant, upon his transfer to this State, s 27(1) of the Victorian Transfer Act had the effect that the appellant became subject to Victorian law. The Governor of Victoria was not obliged to exercise the prerogative of mercy in respect of the appellant consistent with Western Australian law.[22]
[21]Ibid [107]–[108].
[22]Ibid [109]–[110], [113].

The validity of conditions 5 and 9 of the Release Order

Fourthly, the appellant submitted that condition 5 of the Release Order — which, it will be recalled, required the appellant to ‘carr[y] out the lawful instruction of the community corrections officer’ — was invalid because the phrase ‘lawful instruction’ was too vague and arbitrary, and may empower the relevant officer to give instructions that are inconsistent with the other conditions attached to the order. Further, condition 9, which provided that ‘the conditions of this Order be not varied except with the expressed permission of the Adult Parole Board’, was said to purport impermissibly to vest the royal prerogative of mercy in the Adult Parole Board. Finally, the appellant submitted that as conditions 5 and 9 could not be severed from the other conditions contained in the Release Order, the effect of their invalidity was that all the conditions were invalid, such that the order for his release on parole was absolute and unconditional.

The judge held that it was clear that the Governor has power to impose conditions on any pardon that he or she might grant to an offender.[23] There was no merit in the appellant’s submission concerning the validity of condition 5 of the Release Order, as it ignored the requirement under that condition that any instruction by the community corrections officer to the appellant must be ‘lawful’, and so not inconsistent with the other conditions of the Release Order.[24] Condition 9 was not invalid for the reasons submitted by the appellant, as a variation by the Adult Parole Board of a condition of the Release Order would constitute a variation of a condition of an order made by the Governor consequent upon the exercise of the royal prerogative; it does not ‘necessarily involve an exercise by the Parole Board of any aspect of the royal prerogative of mercy’.[25]
[23]Ibid [115].
[24]Ibid [117].
[25]Ibid [116].

The validity and effectiveness of the Varied Parole Order conditions

Finally, the appellant submitted that the further conditions of supervision imposed on him by the Adult Parole Board in 2014 under the Varied Parole Order were inconsistent with condition 1 of the Release Order, which required the appellant to be subject to a period of supervision of five years only.

The judge noted that s 107 of the Sentencing Act empowers the Governor to extend mercy to any person under sentence of imprisonment by directing that the person be released on parole under and subject to the Corrections Act. Under s 74(5) of the Corrections Act, the Adult Parole Board has power to impose additional terms and conditions on a parole order, or to vary the terms and conditions to which a parole order is subject. Accordingly, the Adult Parole Board had power to make the Varied Parole Order.[26]
[26]Ibid [120].

Grounds of appeal

The grounds of appeal contend as follows:

(d) the litigation in this matter of issues previously decided by Harper J in Censori v Holland would not constitute an abuse of process by collateral attack on the previous decision (ground 1);

(e) the instrument dated 31 May 1983 recording the advice of the Executive Council of Western Australia to the Governor that the appellant be pardoned for the crime of wilful murder, on the condition that he be subject to life imprisonment, was inadequate evidence of an exercise of the prerogative of mercy by the Governor (ground 2);

(f) section 27 of the Victorian Transfer Act did not operate in such a way as to translate the conditional pardon by the Governor of Western Australia to a sentence of life imprisonment deemed to be imposed by a Victorian court (grounds 3 and 4);

(g) the exercise of the prerogative of mercy by the Governor of Victoria on 20 May 1994 was not validly directed to the life sentence imposed on the appellant, which had not been able to be served in Western Australia, or would now be at an end by operation of Western Australian law, so that the conditional pardon had ‘matured’ into a full pardon (ground 5);

(h) in the circumstances, the application of s 107(1)(b) of the Sentencing Act to the appellant constituted a denial by the Governor of Victoria of natural justice, as the Governor did not consider how the laws of Western Australia might have applied to the appellant had he been granted parole in that State (ground 6);

(i) five years was the maximum period during which the appellant would have been liable to remain on parole, had he been granted parole in Western Australia, and the primary judge erred in finding otherwise (ground 7);

(j) conditions 5 and 9 of the Release Order were invalid by reason, respectively, of being impermissibly vague and constituting an unlawful delegation of power. Further, each of the conditions of the Release Order were invalid due to an error in the recital of that instrument (grounds 8 and 9); and

(k) on their proper construction, the conditions of the Release Order were operative only until the five-year period of supervision expired, after which the appellant enjoyed an unconditional release (ground 10).

Ground 1 — abuse of process

In relation to ground 1, the appellant submitted that the primary judge had erred in relying on Vasiljkovic v O’Connor[27] in deciding that it would be an abuse of process for him to re-litigate in this proceeding issues that had previously been conclusively determined before Harper J. He argued that, in contrast to that case, his application was a criminal matter to which the principles concerning abuse of process either did not apply or applied in an attenuated form such that his application was not precluded. Accordingly, he was entitled to make discrete and successive applications for habeas corpus, each of which was required to be considered on the merits in the event that he was able to establish a prima facie case. The efficacy of habeas corpus as a remedy capable of policing the lawfulness of the detention of a person would, he submitted, be fundamentally and impermissibly compromised by subjecting it to a limit whereby the writ would not issue in circumstances constituting a collateral attack on an earlier judicial decision. In any event, the appellant submitted, the respondents had the burden of positively establishing the lawfulness of the appellant’s detention, which could not be discharged by relying on the immunity of the decision of Harper J from collateral attack.
[27](2010) 276 ALR 326.

The appellant then made submissions to the effect that he was justified in agitating issues that had been considered and determined by Harper J in Censori v Holland. In his view, the Adult Parole Board had, from the time that the Release Order was made until around the time that the appellant applied for Australian citizenship, acted consistently with Harper J’s decision. It will be recalled that Harper J had described the difficulties which the appellant faced in applying for parole in Victoria, which he would not have faced had he remained in Western Australia, and had suggested that, if it were the case that the appellant would be granted parole were it not for his status as a person incarcerated under the Victorian Transfer Act, ‘consideration should be given to the exercise of the prerogative in his case’.[28] The appellant further submitted that around the time of the making of the Release Order, he had been assured by the Chairman of the Adult Parole Board that, consistent with the review period in respect of parole then operating in Western Australia, ‘a report would be furnished to the relevant authorities purporting recommendations where merited’.[29] He contended that the Chairman had in that way ‘ensured’ the appellant’s release from custody would be ‘consistent with the average time a prisoner in my category was expected to serve pursuant to Western Australian Law, without me gaining or [losing] as much as a day in the process’.[30] Finally, the appellant relied on the statement by Harper J that, following the appellant’s transfer from Western Australia, the Victorian authorities ‘were bound not to act in a way which was inconsistent with Western Australian law’.[31]
[28]Censori v Holland [1993] 1 VR 509, 520; see [8] above.
[29]Aide memoire of the appellant, [1.6].
[30]Ibid [1.35].
[31]Censori v Holland [1993] 1 VR 509, 517.

By first advising the Department of Immigration and Citizenship that the appellant was serving a sentence of life imprisonment (notwithstanding that the five-year period of supervision required by the Release Order had expired), and by subsequently making the Varied Parole Order, the appellant contended that the Adult Parole Board had acted inconsistently with the decision (and qualified recommendation as to parole) of Harper J, in which case the appellant was entitled collaterally to attack that decision in the present proceeding. These submissions, it should be noted, overlap with the appellant’s submissions under ground 6, concerning the alleged denial to him of natural justice in the making of the Release Order, and his submissions under ground 10, concerning the proper construction of the Release Order.

Lastly, the appellant submitted in respect of ground 1 that he was also entitled to challenge the correctness of the decision of Harper J by reason of the availability of fresh evidence, which only became available after the decision was made in that case. The fresh evidence was said to be the alleged failure of the Victorian authorities to act consistently with the decision in Censori v Holland, together with the fact that the Release Order, in so far as it recited that the appellant’s sentence of death had been commuted to a sentence of life imprisonment on 31 May 1983 by the Western Australian Executive Council, disclosed an error on its face. This, as we understood the appellant’s submissions, was said to have had the effect of allowing the question of the validity of the conditional pardon of the Governor of Western Australia, which had been agitated before Harper J, to be ventilated for a second time in this proceeding.

The Attorney-General submitted that each of grounds 1 to 4 should fail because they were directed to the issues of the validity of the commutation of the appellant’s sentence by the Governor of Western Australia, and the validity of his transfer to Victoria and subsequent imprisonment, which were determined against the appellant as a matter of both fact and law in Censori v Holland. That decision was binding on the primary judge, and the re-litigation of those issues in this proceeding would be an abuse of process. The principles of abuse of process are capable of application to public law proceedings, including applications for habeas corpus. Citing Walton v Gardiner,[32] the Attorney-General submitted that to permit the appellant to agitate those issues would be ‘unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings’, and that to permit the re-litigation of those issues would create a risk of inconsistent or conflicting judgments in respect of rights and liabilities arising from the same transaction. That was consistent, it was submitted, with the terms of r 57.04 of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’), which reflect an assumption that an application for habeas corpus may not be made in respect of the same person on the same grounds unless fresh evidence is adduced. The appellant had, by not appealing the decision of Harper J, elected to be bound by it. Further, unlike at the hearing before Harper J, the Attorney-General for Western Australia was not joined or otherwise heard in respect of the appellant’s application before the primary judge. This was another reason not to permit the appellant to re-litigate matters that had been decided by Harper J. The Attorney-General did, however, accept that the principles of abuse of process would not operate to prevent the bringing of successive applications for habeas corpus, or from having those applications determined on their merits, so long as each application raised new issues or fresh evidence.
[32](1993) 177 CLR 378, 393.

The appellant’s argument relating to abuse of process relied in large part on the decision of the Privy Council in Eshugbayi Eleko v Government of Nigeria (Officer Administering) (‘Eshugbayi Eleko’).[33] The appellant in that case had given a fresh notice of motion for the issue of a writ of habeas corpus in the Supreme Court of Nigeria after a previous motion for the same relief had been rejected. He contended that he was entitled to make successive applications to the same court. The respondent admitted a right to make successive applications for habeas corpus, but only to different courts. This led the Privy Council to examine the history of the writ, commencing with its common law origins and tracing the effect of English legislation since the seventeenth century.
[33][1928] AC 459.

The advice of the Privy Council, delivered by Lord Hailsham LC, emphasised the importance of the Habeas Corpus Act 1679,[34] s 10 of which provided that the Lord Chancellor or any of His Majesty’s judges must not wrongfully refuse to entertain an application for habeas corpus made during the court vacation.[35] Lord Hailsham LC noted the respondent’s concession that this meant that, during the vacation, habeas corpus could be sought from successive judges of the same court, leading to the ‘curious result’ that during term time an application could only be made once to each court. He then considered the effect of the establishment of the single High Court of Justice under the Supreme Court of Judicature Act 1873 (the ‘Judicature Act’),[36] and held that it had not been intended by that enactment to cut down the availability of habeas corpus. Accordingly:

It follows that, although by the Judicature Act the Courts have been combined in the one High Court of Justice, each judge of that Court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation, and that he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application.[37]

[34]31 Car 2, c 2.

[35]These provisions now apply as part of the law of Victoria through the Imperial Acts Application Act 1980, s 8. See Antunovic v Dawson (2010) 30 VR 355, 362-70 [24]-[59] (Bell J).

[36]36 & 37 Vict, c 66.

[37][1928] AC 459, 468.

The premise on which Eshugbayi Eleko rested, that there was before the enactment of the Judicature Act a right to approach successive judges in the vacation seeking a writ of habeas corpus, was rejected by the Queen’s Bench Division in In re Hastings (No 2).[38] Lord Parker CJ, on behalf of the Court, held that the authorities did not support the proposition, either by virtue of the Act of 1679 or under the common law.[39] Instead, there was only a right to go to another court seeking the same relief. Further, the Judicature Act had not only created a single High Court of Justice, it had abolished the division of the legal year into terms, giving the High Court power to sit at any time. Prior to this, the common law courts were not, in general, able to function during the vacation and individual judges had only those powers specifically conferred upon them.[40] It followed, contrary to the conclusion of the Privy Council in Eshugbayi Eleko, that since the Judicature Act a decision of a judge of a Queen’s Bench Divisional Court on an application for habeas corpus was a decision of the Court, equivalent to the decision of all the judges of the division, and that the unsuccessful applicant could not be heard again by another judge of the same division. The principle in Hastings (No 2) was subsequently extended by the Chancery Division, holding that the same applicant was also precluded from renewing his application, on the same evidence and grounds, to a divisional court of the Chancery Division.[41] The decision of any divisional court was equivalent to that of all the judges of the High Court.
[38][1959] 1 QB 358.
[39]Ibid 374.
[40]Ibid 375.
[41]In re Hastings (No 3) [1959] Ch 368, 377, 380.

The decisions in the Hastings cases led to legislative reform in the United Kingdom. Section 14(2) of the Administration of Justice Act 1960[42] provided:

Notwithstanding anything in any enactment or rule of law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds, whether to the same court or judge or to any other court or judge, unless fresh evidence is adduced in support of the application …

[42]8 & 9 Eliz 2, c 65.

This provision effectively confirmed the result in the Hastings cases, but made provision for successive applications in the limited class of cases where fresh evidence was adduced.[43] The expression ‘fresh evidence’ has been held to mean evidence that was not only additional to or different from the evidence before the court on the first application, but which the applicant could not reasonably have been expected to have put forward on that occasion.[44]
[43]See generally, Judith Farbey and R J Sharpe, The Law of Habeas Corpus (Oxford University Press, 3^rd ed, 2011), 223–5.
[44]Re Tarling [1979] 1 All ER 981, 987.

Moreover, a court’s inherent jurisdiction to control its own processes, and in particular to prevent its procedures being used in a manner which amounts to abuse of process or which is vexatious, is not excluded by the provision.[45] An applicant for habeas corpus is not permitted to advance an application on one ground, keeping back a separate ground as a basis for a further application.[46] At the same time, the stringency of the exercise of the inherent jurisdiction is different where the liberty of the subject is involved.[47]
[45]R v Governor of Brixton Prison; Ex parte Osman (No 4) [1992] 1 All ER 579, 584.
[46]Re Tarling [1979] 1 All ER 981, 987; R v Governor of Brixton Prison; Ex parte Osman (No 3) [1992] 1 All ER 122, 130; R v Governor of Brixton Prison; Ex parte Osman (No 4) [1992] 1 All ER 579, 583.
[47]Re Tarling [1979] 1 All ER 981, 987; R v Governor of Brixton Prison; Ex parte Osman (No 3) [1992] 1 All ER 122, 130.

The jurisdiction of this Court to grant the writ of habeas corpus derives from it having, at its establishment, the same jurisdiction in Victoria as the Courts of Queen’s Bench, Common Pleas, Exchequer and Chancery had in England.[48] The Act of 1679 applied.[49] The appellant submitted, in effect, that the effect of the decision in Eshugbayi Eleko was that the ability of an applicant for habeas corpus to make successive applications to different judges was preserved in Victoria.
[48]An Act to make provision for the better Administration of Justice in the colony of Victoria 1852 (Imp) 15 Vict, c 10, ss 10, 11 and 14; Supreme Court Act 1890, ss 18, 19; Constitution Act 1975, s 85(3); see also Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580 [97]; Antunovic v Dawson (2010) 30 VR 355, 360–2 [14]–[23].
[49]See Antunovic v Dawson (2010) 30 VR 355, 362–4 [24]–[36].

Some support for this position can be derived from a number of Australian authorities. Many of the cases concern applications for bail. Before the Privy Council’s decision in Eshugbayi Eleko, Griffith CJ said in R v Malone:

The application for bail by summons is in substitution for the old mode of making application for habeas corpus, and the Courts in England, in administering the law in relation to that writ, have always held that an applicant for a writ may go to one Court after another, and that no Court was bound by the view taken by any other. We do not think that the right to apply to each of the Judges in succession has been altered by s 10 of The Judicature Act.[50]

[50][1903] St R Qd 140, 141–2. See also R v Hughes [1983] Qd R 92, 93.

A similar view was taken in New South Wales. In Ex parte Rowlands,[51] the Full Court of the Supreme Court rejected an objection to its competency to hear a substantive motion for habeas corpus following a decision of the Chief Justice refusing an earlier application. Windeyer J held, on behalf of the Court, that:

the law has always been that a person seeking this writ may go from Court to Court or from Judge to Judge, and that each Court or Judge must consider the application without reference to any previous decision in the matter. It would require very strong language in a statute to induce us to hold that this right had been taken away, and that this Court could not entertain an application for a writ of habeas corpus because an application had been previously made to a Judge. Nothing has been shewn to us in any statute to convince us that this common law right has been taken away. If Mr O’Connor were right in his contention, then it would almost necessarily follow that where an application was made to a Judge in chambers then no other application could be made either to another Judge or to the Court.[52]

[51](1895) 16 LR (NSW) 239.

[52](1895) 16 LR (NSW) 239, 246. See also R v Higgs [1962] NSWR 34; (1962) 79 WN (NSW) 335; but compare the decision to the contrary, which does not identify the authorities to which it refers, in Ex parte Williams; Re Poundall (1931) 48 WN (NSW) 228, 229.

Eshugbayi Eleko was held to have authoritatively established as the law in South Australia that an application for a writ of habeas corpus may be taken from court to court (in a jurisdiction in which there is more than one court with power to grant the remedy) and from judge to judge.[53] The Supreme Court of Queensland held similarly in 1973.[54] In Tasmania, the possibility that Eshugbayi Eleko had this effect in relation to habeas corpus has been noted, but the position as to bail has been distinguished on the basis of the Hastings cases.[55]
[53]Tobin v Minister for Correctional Services (1980) 24 SASR 389, 392–3. King CJ, with whom Wells J and Williams J agreed, noted that a different position had been stated in the Hastings cases, but held that the decision of the Privy Council was authoritative in South Australia.
[54]R v Kerr; Ex parte Groves [1973] Qd R 314, 316. Again, the Full Court noted the Hastings decisions but held that the Privy Council’s decision was binding.
[55]Trotter v The Queen [1977] Tas SR 75, 76–7.

The Victorian position was stated in 1958 in Williamson v Director of Penal Services (‘Williamson’).[56] That case concerned the ability of the Full Court to hear an appeal from a decision of a judge in chambers refusing an application for habeas corpus. In the course of holding that such an appeal did not lie, Adam J stated, on behalf of the Court:

In England, both before and since the passing of the Judicature Act of 1873, the practice regarding habeas corpus proceedings in criminal matters has been and is well settled. The remedy of the person aggrieved by a refusal of a judge to issue a writ of habeas corpus has been a fresh application to another judge who is required by law to entertain the application on its merits notwithstanding the prior refusal of a similar application. No appeal has been allowed from a judge’s refusal of the application nor has any appeal been allowed from a successful application for a writ of habeas corpus in such proceedings. These rules find expression in such cases as … Eshugbayi Eleko … In Victoria, prior to 1 July 1884 when our Judicature Act came into operation, the position was the same.[57]

[56][1959] VR 205.

[57][1959] VR 205, 206. See, similarly, in relation to applications for bail, Beljajev v DPP (Unreported, Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991), 9.

The Court went on to hold that the Victorian Judicature Act 1883 had not altered the position.

The authorities were reviewed in the context of bail pending extradition proceedings by Goldberg J in Cabal v United Mexican States (No 2).[58] He concluded that the common law applicable to bail in Australia at the time of enactment of the Extradition Act 1988 (Cth) was that successive applications for bail could be made to different courts and to different judges of the same court.[59]
[58](2000) 171 ALR 305.
[59]Ibid 315 [30].

It can be seen that there is an apparent disparity between the common law in Australia as to the making of successive applications for habeas corpus and the position that obtains in the United Kingdom following the decisions in Hastings and the enactment of s 14(2) of the Administration of Justice Act 1960. The position in Victoria, in particular, is affected by two particular matters. The first is that Williamson was decided some weeks before Hastings (No 2), when this Court’s observation as to the law in England being ‘well settled’ proved to be unduly optimistic. The second is that, since that time, the Rules now make provision not dissimilar to s 14(2). Order 57 is headed ‘Habeas Corpus’. Rule 57.04 provides:

Where an order for a writ is refused, an application for a writ shall not be made again in respect of the same person on the same grounds, whether to the same Judge of the Court or to any other Judge of the Court, unless fresh evidence is adduced.

It may be added that, by virtue of s 14A(2)(a) of the Supreme Court Act 1986, it is plain that the Court of Appeal has jurisdiction to hear an appeal, without leave, from a decision refusing an application for habeas corpus. To the extent that the availability of the writ on successive applications was historically a product of the absence of any right of appeal, that justification can be seen to have disappeared.

Like the English statutory provision upon which r 57.04 is evidently based, it can be seen that it has two principal effects. It first adopts the approach taken in the Hastings cases by making general provision precluding the making of successive applications on the same grounds. In doing so, it unambiguously departs from the common law as articulated in Eshugbayi Eleko and described in the Australian authorities referred to above.[60] It then permits a qualification by ameliorating that position in cases where fresh evidence is adduced.
[60]The clarity with which r 57.04 is expressed means that it is not necessary to decide whether the availability of successive applications for habeas corpus amounted to a fundamental right or could be said to form part of the ‘general system of law’, nor whether r 57.04 could be said to depart in a marked degree from it: see X7 v Australian Crime Commission (2013) 248 CLR 92, 132 [87]. The previous position having developed as a matter of procedure, no wider issue arises either as to the extent to which the Rules may depart from the common law; see also Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63, 92 [50].

In the face of this rule, it can no longer be said in Victoria, as it might be in jurisdictions which have no such rule or statute, that an unsuccessful applicant for habeas corpus is free to renew the application on the same grounds and evidence before a different judge of the Court. Any such principle, resting on the decision in Eshugbayi Eleko, has been abrogated by the rule.

The appellant went further and submitted that r 57.04 now stated the only criterion upon which the Court could decline to hear a fresh application for habeas corpus on the same grounds, namely that fresh evidence had not been adduced. That submission should be rejected. The rule is expressed as imposing a limit on the ability of an applicant to bring a further application, not as conferring a right to do so. As the English cases referred to above show, considerations of abuse of process may still come into play, albeit that allowances are to be made for the fact that the proceeding involves the liberty of the subject.[61] Nothing in r 57.04 itself indicates that the principles of abuse of process are to be excluded. Such a derogation from the Court’s inherent powers to protect its own processes would require words of the utmost clarity.
[61]For example, in R v Governor of Brixton Prison; Ex parte Osman (No 4) [1992] 1 All ER 579, 594–5, Woolf LJ held that the applicant’s sixth application for habeas corpus was an abuse of process because, in the circumstances, he was using the Court’s processes for the improper purpose of preventing his return to Hong Kong.

It follows that, if an unsuccessful applicant for habeas corpus makes a further application to the Court, it is first necessary to ask whether it is made on the same grounds as the previous application. To the extent that it is, such a ground may only be advanced if fresh evidence is adduced in respect of it. To the extent that the application is made on different grounds, or on the same grounds but supplemented with fresh evidence, the Court retains its inherent power to dismiss the proceeding as an abuse of process, making due allowance for the fact that the liberty of the subject is in issue.

The judge in the present matter held that the application was an abuse of process, in so far as the re-litigation of ‘the issues of the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy, and of the [appellant’s] status in Victoria as a person subject to life imprisonment, would involve a clear and direct collateral attack on the decision of Harper J’, contrary to the public interest in the finality of judicial decisions and raising the prospect of inconsistent decisions of the Court.[62] It followed, applying general principles concerning abuse of process, that the decision of Harper J as to those matters was binding in the present proceeding. Apart from cases concerning those general principles, the judge referred to the decision of Edmonds J in Vasiljkovic v O’Connor,[63] in which an application for habeas corpus was dismissed as an abuse of process because it sought to re-litigate matters raised in an earlier proceeding for review. This case shows, although it did not concern a further application for habeas corpus, that the principles of abuse of process apply to proceedings seeking relief by way of habeas corpus.
[62]Reasons, [77].
[63](2010) 276 ALR 326.

To a significant extent the argument at first instance regarding this aspect of the case appears to have focused on the principles of res judicata and issue estoppel, which the judge held were not attracted and which are not in issue in this appeal. But it is necessary to consider the matter by reference first to the provisions of r 57.04.

In undertaking that exercise, the reference to ‘grounds’ in r 57.04 should be understood in its ordinary meaning. The grounds of an application are the bases on which the Court is asked to find that the person’s detention is unlawful. In the present case, the ‘same grounds’ said to have been considered and determined by Harper J are those canvassed in grounds 2 to 4 of the notice of appeal, namely that the primary judge erred in:

(a) finding that the minute of the Western Australian Executive Council constituted an instrument of pardon so as to attract s 679 of the Criminal Code (ground 2);

(b) finding that the actions of the Minister for Racing and Gaming on 13 October 1992 satisfied the requirements of s 679 (ground 3); and

(c) finding that the appellant was deemed by s 27 of the Victorian Transfer Act to be subject to a sentence of life imprisonment imposed by a court of Victoria (ground 4).

In our opinion, the matter before Harper J directly raised the issues now sought to be pressed in grounds 3 and 4. They are the same grounds as were previously raised and, as the judge in the present case held, they were resolved adversely to the appellant in that proceeding. They can therefore only be pursued if fresh evidence is adduced in support of them.

In that regard, the appellant relies on an allegation that the Adult Parole Board had departed from the decision of Harper J by treating him less favourably than he would have been treated under the law of Western Australia had he not been transferred. It was submitted that the Chairman of the Adult Parole Board had given him an assurance in this respect, but on questioning by the Court it became apparent that no actual communication was relied on. The ‘assurance’ was a matter only of inference on the appellant’s part. In any event, these matters would not constitute fresh evidence going to the grounds sought to be re-agitated. At best, they might be reasons that could be advanced to argue that further litigation of the same grounds, on the same evidence, would not constitute an abuse of process. But r 57.04 renders that question moot.

As such, the appellant does not satisfy r 57.04 in respect of grounds 3 and 4. It follows that r 57.04 precluded the appellant from pursuing those matters both before the primary judge and in grounds 3 and 4 of the appeal.

In relation to ground 2, the position is somewhat different. The appellant did not rely before Harper J on the argument that the Executive Council minute did not constitute an instrument of pardon. Although this argument feeds into others which were dealt with by Harper J, it would if accepted offer an alternative path to the relief the appellant seeks. On that basis, we would hold that it is a new ground. It follows that r 57.04 does not mandate the adducing of fresh evidence in respect of it.

Because it is a new ground, reliance on it does not raise the prospect of inconsistent decisions of the Court in respect of the same grounds, nor is it properly to be seen as, of itself, constituting a collateral attack on the decision of Harper J. At the same time, it is necessary to consider whether reliance on this ground in the current proceeding constitutes an abuse of process. It is possible that failing to advance an available ground on a first application may lead to the attempt to do so on a subsequent application being characterised as an abuse of process.[64] However, that is not the present case. In circumstances where the Rules contemplate the making of successive applications for habeas corpus on different grounds, something more than a failure to advance a new ground on an earlier occasion would ordinarily need to be shown in order for an application based on that new ground to constitute an abuse of process. Here, the Attorney-General relied only on the fact that the ground could have been raised previously. Especially in circumstances where the appellant is not legally represented, this falls short of establishing an abuse of process. The appellant is entitled to press ground 2.
[64]Re Tarling [1979] 1 All ER 981, 987; R v Governor of Brixton Prison; Ex parte Osman (No 3) [1992] 1 All ER 122, 129–31.

Grounds 2 to 4 — application of s 27 of the Victorian Transfer Act

The appellant’s submissions in respect of grounds 2, 3 and 4 were directed towards conclusions that the judge had reached in the alternative, on the hypothesis that he was wrong to hold that it constituted an abuse of process for the appellant to raise for consideration issues that had been decided by Harper J in Censori v Holland. While we have held that the judge was correct in so holding in relation to grounds 3 and 4, it is convenient briefly to address the merits of those grounds as well, in any event.

The appellant submitted in respect of ground 2 that it was not open to the judge, as a matter of evidence, to conclude that the Executive Council minute dated 31 May 1983 constituted the instrument of pardon by which the sentence of death imposed on him by the Supreme Court of Western Australia had been commuted. That minute was, in the appellant’s submission, incapable of effecting his pardon as it did not bear the ‘imprimatur of the Public Seal’, which was said to be required by cl VI of the Letters Patent constituting the office of Governor of Western Australia.[65]
[65]This submission was directed ultimately at the conclusion that, by virtue of the abolition of the death penalty, the appellant was subject to no sentence of imprisonment upon which the Victorian Transfer Act could operate. See further, [79] below.

There is no substance in this submission. Clause VI of the Letters Patent provides for the existence and use of the public seal, but says nothing as to the efficacy of instruments which do not bear its imprimatur. The Executive Council minute was signed by the Governor and evidenced the course of action taken by him. It was, as the judge held, capable of constituting the instrument of pardon granted to the appellant, notwithstanding that it was not in the form in which pardons were historically sealed and delivered.[66]
[66]Reasons [81].

Ground 3 asserts that the requirements of s 679 were not validly completed by the Minister for Racing and Gaming. There were two limbs to the appellant’s argument. He first submitted that, even if the minute had authorised the Governor to exercise mercy pursuant to s 679 of the Criminal Code, because the Office of Chief Secretary had been abolished by the time the pardon had purportedly been issued, the requirement of s 679 that the Governor’s extension of mercy be ‘signified in writing’ to the Chief Secretary could not be met. In any event, no such ‘writing’ existed, it was submitted, that was capable of meeting the requirements of s 679. Accordingly, the Governor’s conditional pardon was said to be void and of no effect.

Secondly, even if the extension of mercy had been ‘signified in writing’ to the Chief Secretary, the allowance or order required to be made by the Chief Secretary did not eventuate. There being no allowance or order within the meaning of s 679, there was no instrument capable of having effect as a valid sentence passed by a court of Western Australia.

These arguments were rightly rejected both by Harper J and the primary judge in the present proceeding. Following s 3 of the Alteration of Statutory Designations Act 1974 (WA), the Governor in Council designated the Minister for Racing and Gaming on 18 October 1985 as the Minister responsible for signing the allowance or order referred to in s 679 in place of the Chief Secretary. Nothing turns on the fact that the allowance or order was not placed into evidence. As the judge in this matter held, its existence was recited in the appellant’s own evidence.[67] There was no basis in those circumstances for the submission that no such instrument existed.
[67]Ibid [85].

Equally, there is no substance in the argument that the pardon, and any allowance or order, were deprived of legal effect by the absence of any evidence of the signification in writing to the Chief Secretary. Irrespective of precisely what was signified about the conditional pardon, and when and to whom, the responsible Minister ultimately made the necessary allowance or order. It follows that the purpose of the requirement of signification in writing was achieved when the Minister for Racing and Gaming performed that function. In these circumstances it follows that, even if this Court could conclude that no signification in writing occurred (which is far from clear), it would have no effect on the validity of that ultimate step.

The appellant then submitted, still under ground 3, that the Governor of Western Australia had no power to extend the reach of a pardon extraterritorially. The result was that once the appellant was transferred to Victoria, the Governor’s conditional pardon, and anything purportedly done before or after that date under s 679 by Western Australian authorities, could no longer authorise the commitment to prison of the appellant pursuant to those sources of authority in Western Australia.

No question of extraterritorial operation of the pardon arises. The law governing the appellant upon his transfer to Victoria is that applying by virtue of the Victorian Transfer Act. There is nothing to prevent that legislation operating by reference to the instrument pardoning the appellant under the law of Western Australia. To the contrary, the whole purpose of the cooperative regime of which the Victorian Transfer Act forms part is to ensure ‘extraterritorial’ results of that kind.

The conclusion which the appellant sought to draw from the above submissions was that, under the Victorian Transfer Act, the translated sentence was not one of life imprisonment, but one of death. The repeal of the death penalty in this State prior to his transfer meant that he was no longer subject, whether in Victoria or in Western Australia, to any sentence or to a liability to be imprisoned. For the reasons given above, this conclusion does not follow as a matter of law. There is no substance in ground 3.

Under ground 4, the appellant pointed to the terms of s 27 of the Victorian Transfer Act, and submitted that he could not be subject to a sentence of life imprisonment, deemed to have been imposed by a court in Victoria, as the requirements of that section had not been, and could not be, met. Section 27 relevantly takes as an integer upon which it operates ‘any sentence of imprisonment imposed upon him by a court of the participating State’. The appellant contended that no sentence of imprisonment had been imposed on him by a court of Western Australia or by any other Act or other law: the conditional pardon of the appellant by an exercise of the prerogative of mercy could not, he submitted, be described in those terms. Further, it would contravene the doctrine of the separation of powers were s 27 found to be capable of operating in respect of an exercise of executive power by the Governor of Western Australia.

The Attorney-General accepted that the judge relied on s 27 as amended, and in a form which was not applicable to the appellant at the times in question. However, it was submitted that there was no material difference between the provision in the form on which the judge relied, and the provision as in force at the time of the appellant’s transfer. Further, it was submitted that, even if the Chief Secretary (or the Minister for Racing and Gaming) had failed to make an order as required under s 679 of the Criminal Code for the life imprisonment of the appellant subsequent to the Governor’s conditional pardon, s 5(2) of the Victorian Transfer Act, read together with s 27, was sufficient, for the purpose of authorising the appellant’s detention under Victorian law, to deem the Governor’s conditional pardon to be a sentence of imprisonment imposed by the Supreme Court of Victoria. Section 5(2) provided as follows:

For the purposes of this Act, a sentence of imprisonment imposed, or originally imposed, by, or by the operation of, an Act or other law of a State or Territory shall, except as prescribed by regulations under this Act, be deemed to have been imposed, or originally imposed, by a court of that State or Territory.

The term ‘sentence of imprisonment’ was defined to include an ‘indeterminate sentence’,[68] which was itself defined to mean

a sentence of or order or direction for imprisonment or detention for life or during the pleasure of Her Majesty or during the pleasure of the Governor or the Governor of a participating State, and includes such a sentence, order or direction imposed made or given by, or by the operation of, an Act or other law.

[68]Victorian Transfer Act, s 4.

The Attorney-General submitted that, as both Harper J and the primary judge had held,[69] the conditional pardon ordered or directed imprisonment for life, which was an ‘indeterminate sentence’, and so a ‘sentence of imprisonment’, imposed by the operation of s 679 of the Criminal Code; s 5(2) therefore deemed it to have been imposed by a court of Western Australia. Accordingly, the conditional pardon was capable of constituting the foundation upon which s 27 could operate.
[69]Censori v Holland [1993] 1 VR 509, 517; Reasons [83].

These submissions should be accepted. By operation of s 679 of the Criminal Code, an order or direction of life imprisonment was imposed upon the appellant. Such a sentence was an ‘indeterminate sentence’ and therefore a ‘sentence of imprisonment’ within the meaning of the Victorian Transfer Act. Section 5(2) then had the effect of deeming that sentence of imprisonment to have been imposed by a court of Western Australia, so as to attract the operation of s 27 of the Victorian Transfer Act. The same conclusion was reached by Harper J, without reference to s 5(2), as a matter of construction of the provisions of the Victorian Transfer Act.

Finally, the appellant’s submission about the separation of powers must be rejected. The Victorian Transfer Act does not empower either the Governor of Western Australia or the Victorian legislature to determine the rights and duties of the appellant, in the nature of an exercise of judicial power. In effect, it takes the Governor’s conditional pardon as a ‘factum’ upon which the Victorian Transfer Act operates, as though it were a sentence of imprisonment imposed by a Victorian court.[70]
[70]See Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 464 (Isaacs and Rich JJ); R v Hughes (2000) 202 CLR 535, 551 [24]; Re Macks; Ex parte Saint (2000) 204 CLR 158, 178 [25] (Gleeson CJ), 192 [76] (Gaudron J), 205–6 [123] (McHugh J), 233–4 [210] (Gummow J); Baker v The Queen (2004) 223 CLR 513, 532 [43] (McHugh, Gummow, Hayne and Heydon JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 619 [108] (Gummow J).

Ground 4 would therefore fail, even if it were able to be pursued.

Ground 5 — validity of the Release Order

Ground 5 alleges that the exercise of the royal prerogative of mercy by the Governor of Victoria had not been validly directed at the appellant’s life sentence. The appellant contended that the primary judge had erred in finding that the Release Order was validly made. That order, it was said, subjected the appellant to ‘double jeopardy’ because his conditional pardon had, by the time the Release Order was made, ‘matured’ into a ‘full pardon’, in the following way. The conditional pardon required the appellant to be imprisoned for life. His transfer to Victoria and the imposition on him of a deemed life sentence by s 27 of the Victorian Transfer Act prevented him from serving a term of life imprisonment in accordance with the conditional pardon (presumably because the condition was capable only of authorising his imprisonment for life by Western Australian authorities). The appellant cited Ex parte Wells[71] for the proposition that where the conditions of a pardon are rendered incapable of performance by reason of the conduct of the Crown, the pardon becomes absolute.
[71]59 US 307 (1855).

The same conclusion as to the ‘maturation’ of the appellant’s conditional pardon was reached, in his submission, by looking to the terms of s 34(2)(ba)(i) of the Offenders Probation and Parole Act 1963 (WA) (the ‘OPP Act’). That provision relevantly provided that, in respect of each prisoner undergoing a sentence of life imprisonment commuted from a sentence of death pursuant to s 679 of the Criminal Code, the Western Australian Parole Board was obliged to furnish to the Minister for Prisons a written report, with or without a parole recommendation with respect to the prisoner, and ‘as soon as practicable after a period of ten years has elapsed from the date the sentence was so commuted and thereafter as soon as practicable after each period of five years’. The appellant contended that this provision meant that, after a period of ten years had elapsed, if an ‘order issues directing release from the conditions of [the] pardon’, the period of indefinite imprisonment ‘attains finite duration and is discharged’. Perhaps inconsistently with the suggested invalidity of the Release Order by reason of ‘double jeopardy’, the Release Order was the instrument which was said to have ‘lawfully discharged [the appellant] from further service’.

The Attorney-General denied that any principle such as ‘double jeopardy’ had been engaged, and submitted that the Release Order was directed to the sentence of imprisonment deemed to have been imposed on the appellant by the Supreme Court of Victoria by operation of s 27 of the Victorian Transfer Act. Once the appellant had arrived in Victoria, his imprisonment was governed by Victorian law. Accordingly, the Governor was empowered under s 28(5) of the Victorian Transfer Act and s 107(1)(b) of the Sentencing Act, as well as by the Letters Patent establishing his office, to exercise the prerogative of mercy in respect of the appellant, and direct his release on parole under and subject to the Corrections Act (and, citing R v Governor of Pentridge; Ex parte Arthur,[72] to impose conditions on such parole). The Attorney-General did not make any submissions specifically addressing the appellant’s alternative argument as to the ‘maturation’ of his conditional pardon.
[72][1979] VR 304, 307–308.

The appellant’s submissions in relation to ground 5 should not be accepted. It is correct to say that the conditional pardon required the appellant to be imprisoned for life. But once s 27 of the Victorian Transfer Act took effect in respect of that requirement, as a deemed sentence of imprisonment, it fell to be considered, and acted upon, under Victorian law. For the purposes of Victorian law, the requirement of imprisonment thereby did not operate as a condition attached to a pardon, but as a sentence of imprisonment to which Victorian law, and in particular s 27, applied.

This is borne out by s 23 of the WA Transfer Act, which provides that, where a prisoner is transferred to a participating State pursuant to an order of transfer, from the time he or she arrives in the participating State every sentence of imprisonment imposed upon him or her by a court of Western Australia ceases to have effect in Western Australia (subject to exceptions not presently relevant). This provision applied to the conditional pardon of the appellant because s 3(3) of the WA Transfer Act provided that, for the purposes of that Act, a sentence of imprisonment imposed by operation of an Act or other law of a State or Territory shall be deemed to have been imposed by a court of that State.

It follows that the pardon did not ‘mature’ into an unconditional pardon. It became a sentence of imprisonment susceptible of the exercise of the royal prerogative of mercy under s 28(5) of the Victorian Transfer Act and s 107 of the Sentencing Act.

Grounds 6 and 7 — validity of the Release Order

In relation to grounds 6 and 7, the appellant submitted that, on their proper construction, s 705 of the Criminal Code, ss 34(2)(ba)(i), 34B, 42 and 43 of the OPP Act, ss 90 and 141(4) of the Sentencing Act 1995 (WA), and ss 25(3) and 27(3) of the Sentence Administration Act 2003 (WA) had or have the effect that, had the appellant remained in Western Australia and been released on parole, the maximum parole period that he would have been required to serve was five years. The judge had, it was submitted, erred in doubting that this was the case. It followed that the judge had erred in finding that the appellant had not been ‘denied natural justice’. In essence, the appellant’s submission was that the legislative scheme established by the Victorian Transfer Act required the Governor of Victoria, in making the Release Order, to take into account what the Governor of Western Australia would have been obliged to take into account, or the manner in which he or she would have been obliged to act, had an equivalent order been made in that jurisdiction. The failure of the Governor of Victoria to do so resulted in the appellant suffering discrimination by reason only of the jurisdiction in which mercy fell to be extended. The consequence was that the Release Order was invalid, or that it should be construed such that, after the expiration of the five-year term of supervision, the appellant was no longer the subject of a sentence.

The Attorney-General denied that the relevant provisions of Western Australian law had the operation contended for by the appellant. In any event, s 28(5) of the Victorian Transfer Act did not require the Governor of Victoria, in exercising the prerogative of mercy by making the Release Order, to take into account what the Governor of Western Australia might have been required to take into account, or to apply or give effect to the law of Western Australia when exercising the royal prerogative of mercy. Further, upon his transfer to Victoria, s 23 of the WA Transfer Act operated to deprive any sentence under Western Australian law of any ongoing effect under the law in that State.

We have already upheld a similar submission in respect of ground 5. It was the law of Victoria that governed the position at the time of the Release Order. The Attorney-General correctly pointed out that s 28(5)(b) of the Victorian Transfer Act confers a discretion on the Governor of Victoria. Moreover, that discretion is enlivened by the giving of an indication by the Governor of the transferring State as to what he or she may have done had the prisoner not been transferred. In the present case, there was no evidence that any such indication had been given by the Governor of Western Australia before the Release Order was made. Even if it had been, it would not have been mandatory for the Governor of Victoria to act consistently with such an indication.

It follows that, even if the provisions of Western Australian law had the operation which the appellant alleged, there was no obligation on the Governor of Victoria to exercise the royal prerogative of mercy in a manner consistent with that operation. In the circumstances it is not necessary to consider whether, in fact, Western Australian law would have applied to the appellant in the manner for which he contended.

Grounds 8 and 9 — conditions 5 and 9 of the Release Order

In respect of ground 8, the appellant submitted that conditions 5 and 9 of the Release Order were invalid, and that it followed that all of the conditions were invalid. Accordingly, the Release Order should be construed as an unqualified extension of mercy to the appellant. Condition 5, which required the appellant to carry out the lawful instructions of the community corrections officer, was invalid because it was impermissibly vague, and this defect was evident in light of the correspondence between the appellant and an officer of the Adult Parole Board around the time that the Varied Parole Order was made. The vagueness giving rise to the invalidity of condition 5 was said to arise from the fact that the community corrections officer who from time to time may give instructions to the appellant would ‘not know what constitutes “lawful instruction”’. The condition should be held to be invalid in order to protect the appellant from recommitment to prison for disobeying an unlawful order. Condition 9, which states that ‘the conditions of [the Release Order] be not varied except with the expressed permission of the Adult Parole Board’, was said to be invalid because any variation of the terms of a pardon after it is given constitutes a fresh exercise of the prerogative of mercy, which was said to be exercisable by the Governor alone.

The appellant’s submissions in respect of ground 9 appeared to build on his earlier submissions to the effect that the Governor of Western Australia’s conditional pardon was ineffective in the absence of compliance with the requirements of s 679 of the Criminal Code. As the Release Order recited, incorrectly in the appellant’s submission, that on 31 May 1983, the appellant’s sentence of death ‘was commuted by the Western Australian Executive Council to a sentence of imprisonment for life’, the Governor of Victoria ought to be held to have been misadvised by the Executive Council, from which it followed that the Release Order should be held to be unconditional.

The Attorney-General submitted that condition 5 was not vague or uncertain, and that it was unremarkable in parole or community corrections orders. The lawfulness of any particular instruction given to the appellant would be amenable to judicial review. As for condition 9, the Corrections Act was the source of the power of the Adult Parole Board to vary the appellant’s parole conditions; condition 9 merely recognised that power, and purported to qualify any other power of variation by requiring the permission of the Adult Parole Board.

There is no substance in these grounds. As to condition 5, a parole condition requiring the paroled prisoner to obey the lawful instructions of a corrections officer does not confer any fresh powers on such an officer. It only requires the prisoner to obey such instructions as a corrections officer lawfully gives him or her in the exercise of that officer’s powers. The effect is to constitute disobedience of such an instruction a breach of a condition of parole (in addition to any other consequences it may have). There is nothing vague or uncertain in such a requirement.

Condition 9 is likewise unobjectionable. Variation of the terms of parole specified under s 107(1)(b) of the Sentencing Act is contemplated by the expression ‘under and subject to the Corrections Act’, which incorporates powers including those of the Adult Parole Board to make orders in respect of parole conditions. By stipulating that the conditions of the Release Order could not be varied without the permission of the Adult Parole Board, condition 9 was confirming and recognising the Board’s statutory powers.

In relation to ground 9, for the reasons already given, there was no error in the Release Order reciting that the appellant’s sentence of death had been commuted by the Western Australian Executive Council to a sentence for imprisonment for life.

Ground 10 — effect of five-year supervision period in the Release Order

The appellant submits in respect of ground 10 that, on its proper construction, the Release Order operated to impose conditions on the appellant only until such time as the period of supervision expired. There was, in his submission, no explicit order or other indication in the Release Order that he should continue to be on parole for the term of his natural life. He submitted that a decade had passed following the expiry of the supervision period, during which time he considered himself to be free of further obligations or duties in respect of parole, and that the Release Order should be taken to have ‘crystallised’ in meaning, such that it was not now capable of being construed to apply to him for the term of his natural life. In further support of this argument, the appellant pointed again to the legislative regime in Western Australia governing the release on parole of prisoners in a position equivalent to his own. The failure of the primary judge to accept these arguments was said to constitute a breach of the doctrine of the separation of powers, because only the Governor was entitled to impose conditions in respect of an exercise of mercy. By holding that, as a question of law, the Release Order operated for the term of the appellant’s natural life, the primary judge had in effect purported to impose an additional condition in respect of the Governor’s exercise of mercy.

The Attorney-General submitted that the power of the Governor of Victoria to order the release on parole of a prisoner under s 107(1)(b) of the Sentencing Act did not permit the Governor to remit the prisoner’s sentence. Rather, such a power was sourced in cl IX of the Letters Patent establishing the office of the Governor of Victoria; there was no indication in the Release Order, or in any other document before the primary judge, that the Governor had sought to exercise any power other than that under s 107(1)(b) of the Sentencing Act. Section 107(1)(b) empowered the Governor to order the release on parole of a prisoner, subject to the Corrections Act. It was submitted that the relevant provisions of the Corrections Act included s 55(1) and s 76. Under s 55(1), the ‘parole period’ is the period beginning on the day on which a person is released from prison and ending at the end of the person’s sentence. Section 76 provides that a prisoner remains under sentence until the parole period elapses or the prisoner is otherwise discharged from the prison sentence. The Release Order was directed to the deemed sentence of life imprisonment to which the appellant was subject. Accordingly, the appellant’s construction of the Release Order was not open. Further, even if it were within power for the Governor to have limited the appellant’s period of parole to five years, on its proper construction the Release Order did not have that effect. This was said to be consistent with the notice given by the Adult Parole Board on 6 June 1994, which stated that the appellant was ‘on parole for the balance of [his] sentence’.

It is not necessary to decide whether, as the Attorney-General submitted, s 107(1)(b) does not permit the Governor of Victoria to remit a prisoner’s sentence, or whether an order made pursuant to s 107(1)(b) could, in combination with the prerogative power of the Governor derived from cl IX of the Letters Patent, have that effect. On its proper construction, the Release Order did not purport to have any such operation. Only one of the conditions referred to a five-year period for its operation. The other conditions were unlimited as to time. It is true that several conditions presuppose the identification of ‘the’ or ‘a’ community corrections officer. But others were well capable of continuing to operate after the supervision period expired. For example, condition 2 (not break any law), condition 4 (not leave Victoria without the regional manager’s written permission) and condition 8 (attend the Adult Parole Board for interview when directed by the Board) all had ongoing operation.

More fundamentally, the act of mercy which the Release Order described was confined to the appellant’s release from custody, on conditions as to parole. As the Attorney-General submitted, that release was ‘under and subject to the Corrections Act’, which makes it clear that a person released on parole is to be regarded as still under sentence. The larger act of mercy which the appellant suggests is not described in the Release Order. Nor is it to be found, as a mere matter of inference, from the limited period for which a community corrections officer was stipulated to be necessary.

Conclusion

It follows that the appeal should be dismissed.

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Citations

Censori v Adult Parole Board of Victoria [2015] VSCA 254

Most Recent Citation

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811

Cases Citing This Decision

9

High Court Bulletin [2016] HCAB 2

Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58

Cases Cited

16

Statutory Material Cited

0

Censori v Chairman, Adult Parole Board [2015] VSC 106

DPP v Censori [2006] VSC 486

Oates v Attorney-General (Cth) [2001] FCA 84

[2015] VSCA 254

17 September 2015