Censori v Chairman, Adult Parole Board

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 04402

BETWEEN

ERIS CENSORI	Plaintiff
and
MR WILLIAM GILLARD - CHAIRMAN ADULT PAROLE BOARD AND HIS EXCELLENCY THE HONOURABLE ALEX CHERNOV AC QC	Defendants
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA (INTERVENING)

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 March 2015
DATE OF JUDGMENT:	30 March 2015
CASE MAY BE CITED AS:	Censori v Chairman, Adult Parole Board & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 106

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ADMINISTRATIVE LAW — Habeas corpus —Plaintiff sentenced to death by Supreme Court of Western Australia — Commuted to life imprisonment — Transferred to Victoria under Prisoners (Interstate Transfer) Act 1985 — Released on parole by exercise of Victorian Governor of royal prerogative of mercy under s 107(1) of Sentencing Act 1991 — Whether plaintiff subject to life sentence on transfer to Victoria — Whether parole order affected life sentence — Whether plaintiff still subject to life sentence — Whether conditions of parole order effective — Whether Parole Board has power to impose further conditions on plaintiff — Prisoners (Interstate Transfer) Act 1983 ss 4, 27, 28 – Corrections Act 1986 s 74 — Sentencing Act 1991 s 107.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Plaintiff appeared in person
For the Defendants	No appearance
For the Attorney-General (Intervening)	Mr C Horan	Victorian Government Solicitor

HIS HONOUR:

The plaintiff has commenced this proceeding, by summons, seeking relief in the nature of habeas corpus, claiming to be entitled to be ‘discharged from unlawful imprisonment’. The first defendant, the Honourable EW Gillard QC, is the Chairman of the Adult Parole Board. The second defendant is the Governor of the State of Victoria, his Excellency the Honourable Alex Chernov AC QC. In accordance with normal convention, the defendants, through the Victorian Government Solicitor, have notified the Court that they do not intend to take an active role in the proceeding, but they will abide the decision of the Court, in accordance with the principles stated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman[1]. Accordingly, the Attorney-General has been granted leave to intervene in the proceeding to act as a contradictor.
[1](1980) 144 CLR 13, 35.

The facts

The background to the present application has a history exceeding 30 years, which may be shortly summarised.

On 17 June 1982, the plaintiff was convicted of one charge of murder in the Supreme Court of Western Australia, and was sentenced to death. On 31 May 1983, pursuant to s 679 of the Criminal Code 1913 (Western Australia) (‘Criminal Code’), his Excellency the Governor of Western Australia exercised the royal prerogative of mercy, and granted the plaintiff a pardon on the condition ‘that the said Eris Censori serves a sentence of imprisonment for life’. On 30 June 1983, purportedly pursuant to s 679 of the Criminal Code, the Minister for Prisons of Western Australia made an order that the plaintiff be imprisoned in Her Majesty’s Prison at Fremantle and there be kept at hard labour for the term of life.

Subsequently, the plaintiff signed a form of request for transfer to Victoria pursuant to the Prisoners (Interstate Transfer) Act 1983 (‘the Victorian Transfer Act’). On 23 December 1986, the Minister for Prisons signed an order to transfer the plaintiff to the State of Victoria for the purposes of that Act. As a result, the plaintiff was transferred to Victoria, and incarcerated there, initially at Pentridge Prison, Coburg, on 22 January 1987.

Later in the same year the plaintiff applied to the Supreme Court of Victoria seeking an order fixing a minimum term to his life sentence, pursuant to s 18(1) of the Penalties and Sentences Act 1985 (Vic). That application was rejected by the Supreme Court Prothonotary on the basis of the decision of Gray J, which was confirmed by the Court of Criminal Appeal, in Porter v R[2]. In that case, it was held that s 18A of the Penalties and Sentences Act 1985 did not apply to a sentence imposed by an interstate court on a prisoner, who had been subsequently transferred to Victoria pursuant to the Victorian Transfer Act.
[2][1990] VR 897.

As a result, in 1992 the plaintiff issued a proceeding in this Court seeking a writ of habeas corpus. The defendants to that proceeding were Ms Helen Holland, the Governor of Her Majesty’s Prison, Morwell at which the plaintiff was then incarcerated, and Mr Peter Harmsworth, the former Director-General of the Office of Corrections. The Court granted leave to the Attorney-General for the State of Victoria to intervene and make submissions. In those proceedings, the plaintiff challenged the legal authority by which he was then incarcerated. That challenge was rejected by Harper J, before whom the proceeding was heard.[3] I shall return to his Honour’s reasons shortly.
[3]Censori v Holland & Ors [1993] 1 VR 509.

In the meantime, on 13 October 1992, the Minister for Racing and Gaming of Western Australia signed an order, again purportedly pursuant to s 679 of the Criminal Code, requiring that the plaintiff be imprisoned for the term of his life.

On 20 May 1994, the then Governor of Victoria made an order (‘the Parole Order’), pursuant to s 107(1)(b) of the Sentencing Act 1991, that the plaintiff be released from custody on 30 June 1994, subject to specified conditions on parole. The parole conditions were:

(i)That the plaintiff be under the supervision of a community corrections officer for a period of five years;
(ii)That the plaintiff does not break any law;
(iii)That the plaintiff notify a community corrections officer of any change of address or employment within 48 hours of the change;
(iv)That the plaintiff does not leave the State of Victoria without written permission of the Regional Manager, Community Corrections;
(v)That the plaintiff carry out the lawful instruction of the community corrections officer;
(vi)That the plaintiff report as required and when required by the community corrections officer;
(vii)That the plaintiff make himself available for interview by the community corrections officer at such time and places as directed by the community corrections officer;
(viii)That the plaintiff attend before the Board for interview as and when directed by the Board;
(ix)That the conditions of the order be not varied except with the express permission of the Adult Parole Board.

On 6 June 1994, the Adult Parole Board notified the plaintiff of the Governor’s order. After setting out the terms of that order, including the parole conditions, the notice stated:

You are on parole for the balance of your sentence.
The Adult Parole Board may cancel your parole order at any time.
Your period of supervision expires on 29 June 1994.

As a result, the plaintiff was released on parole on 30 June 1994. Subsequently, in 2009, the plaintiff applied for Australian citizenship. In response, he was advised by the Department of Immigration and Citizenship that his application had been refused, because he was still subject to, and serving, the remainder of a sentence of imprisonment, either on parole, on a licence to be at large, or under similar conditions. As a result, the plaintiff wrote a letter to the Adult Parole Board requesting a review of the advice provided by the Board to the Immigration Department as to his status. The Parole Board responded with a letter dated 7 August 2009, stating that the plaintiff was subject to a sentence of imprisonment for life, and that he was on parole for the balance of that sentence. That advice was subsequently confirmed by a letter from the general manager of the Adult Parole Board stating that the then chairperson of the Board had determined that, as a matter of law, the plaintiff was on parole for the period of his natural life.

On 8 April 2014, the Corrections Amendment (Breach of Parole and other Matters) Regulations 2014 (Vic) were made by the Governor-in-Council. The amendments inserted regulations 83A to 83C in the Corrections Regulations 2009 (Vic). As a result of those regulations, the Adult Parole Board varied the conditions of the plaintiff’s parole effective from 1 July 2014. Those conditions provided for substantially increased supervision of the plaintiff during the term of his parole, and they imposed a number of reporting and other requirements on the plaintiff.

In the present proceeding, the plaintiff, in effect, challenges the assertion by the Adult Parole Board that he is still subject to a life sentence of imprisonment. He also challenges the validity of the conditions imposed on him by the order of the Board dated 12 June 2014.

Censori v Holland (Harper J)

Before turning to the submissions made by the plaintiff, it is convenient first to summarise, briefly, the reasons for judgment of Harper J in response to the application by the plaintiff, in 1993, for a writ of habeas corpus.[4] Those reasons may be summarised as follows:
[4]Censori v Holland [1993] 1 VR 509.

(1)The plaintiff sought, first, to impugn the exercise by the Governor of Western Australia of the royal prerogative mercy pursuant to s 679 of the Criminal Code. He argued that the commutation of the sentence of death passed on him, to one of life imprisonment, was ineffective without his consent. Harper J rejected that submission. He held, first, that, under s 679 of the Criminal Code, it was not necessary for the offender to consent to the commutation of the sentence of death upon him. In any event, his Honour found, as a fact, that the plaintiff had consented to the commutation of the death penalty and the imposition on him of a life sentence.[5]
(2)Harper J then addressed the question whether the commuted punishment was such that the Interstate Transfer Act (Western Australia) could operate on it. The question arose because, at the time that the plaintiff requested the transfer, the Chief Secretary had not completed the steps required of him by s 679, and, in particular, he had not made an order of life imprisonment as required by s 679 of the Criminal Code. In respect of that issue, Harper J held:
(a)The conditional pardon granted by the Governor was an order or direction given by law. Accordingly, the plaintiff was properly transferred to Victoria as an offender imprisoned for life following his conditional pardon.
(b)The Victorian authorities were bound, by s 118 of the Commonwealth Constitution, to give full faith and credit to the laws of Western Australia. Thus the Victorian authorities were bound to give effect to the condition on which the Governor of Western Australia had commuted the plaintiff’s penalty of death, namely that he be imprisoned for life.[6]
(c)For similar reasons, the plaintiff was someone whose custody had been entrusted by the Western Australian authorities to the Victorian authorities as a person subject to imprisonment for life as conclusively determined by the Governor of Western Australia.[7]
(d)The Office of Chief Secretary of Western Australia was abolished on 19 April 1983. However, by Order in Council dated 18 October 1985, any reference contained in any law to the Chief Secretary was to be construed as a reference to the Minister for Racing and Gaming. On 13 October 1992, the Minister for Racing and Gaming of Western Australia signed an order requiring that the plaintiff be imprisoned for the term of life. Harper J held that that order constituted compliance with the duty placed on the then Chief Secretary under s 679 of the Criminal Code, so that the order signed by the Minister for Racing had the effect of a valid sentence passed by the Supreme Court of Western Australia.[8]
(e)Accordingly, that sentence was a ‘sentence of imprisonment’ for the purposes of s 27 of the Victorian Transfer Act.
(f)Pursuant to s 27 of that Act, that sentence was deemed to have been imposed on the plaintiff by a corresponding court of Victoria, namely, the Supreme Court of Victoria.[9]
[5]Ibid, 515.
[6]Ibid, 517.
[7]Ibid, 518.
[8]Ibid, 519.
[9]Ibid, 520.

Submissions of plaintiff

The plaintiff, who represented himself, filed detailed written submissions in support of his application for relief. He also made thorough and well‑researched submissions on the hearing before me.

The plaintiff’s written and oral submissions were divided into two parts, the first entitled ‘construing the terms of parole’, and the second part entitled ‘lawful process authorising commitment to prison’. The first submissions went beyond matters of construction, and, in essence, sought to impugn the Parole Order, to the extent that it had the effect of subjecting the plaintiff to parole for life.

Those submissions commenced with two propositions. First, it was contended that the Governor of Victoria did not have power to grant a pardon in respect of a sentence imposed as a consequence of an exercise of the royal prerogative of mercy undertaken by the Governor of Western Australia. As the plaintiff put it, ‘mercy may (not) temper mercy’. He submitted that the life sentence, that was a condition of the parole granted by the Governor of Western Australia, was not a sentence by a court of law. Thus, he submitted, under the Letters Patent establishing his office, the Governor of Victoria did not have power to grant a pardon in respect of that sentence. In support of that proposition, the plaintiff also relied on s 24 of the Victorian Transfer Act and the decision of the Full Court in R v Bariska.[10] Accordingly, the sentence that was the subject of the exercise of the royal prerogative by the Governor of Victoria was the sentence of death, and not the sentence of life imprisonment imposed as a condition of the pardon granted by the Governor of Western Australia. He submitted that, as a matter of law, the length of the parole period cannot exceed the nominal sentence. Since the nominal sentence is ‘death’, it is not possible to measure the parole period unless it is expressed in finite terms. Accordingly (he submitted), having been released on parole, he is not subject to any sentence, after complying with the five year period of supervision imposed by condition 1.
[10][1989] VR 425, 430.

The plaintiff then made submissions relating to the validity of conditions 5 and 9 attached to the Parole Order. In particular, he submitted that condition 9 is invalid, because the Governor, by exercising the royal prerogative of mercy, cannot vest part of the exercise of that prerogative in any other person or agency. Thus, the Governor could not vest in the Parole Board the power to impose additional conditions to the Parole Order made by the Governor. Further, he submitted that condition 5 (requiring that the plaintiff carry out the lawful instruction of the community corrections officer) is invalid because the phrase ‘unlawful instructions’ is too vague and arbitrary, and because it might empower the community corrections officer to give instructions that are inconsistent with the conditions attached to the Parole Order.

The plaintiff submitted that conditions 5 and 9 are conditions subsequent to the Parole Order, and that they cannot be severed from the other conditions contained in that Order. Accordingly, he submitted, the order, for his release on parole, was absolute and unconditional.

The plaintiff further submitted that the conditions imposed by the Parole Board in 2014, requiring further supervision by the community corrections officer, are inconsistent with condition number 1 of the Parole Order, which only required the plaintiff to be under the supervision of a community corrections officer for a period of five years.

The next submission made by the plaintiff was entitled ‘right to invoke double jeopardy’. The plaintiff submitted that, consistently with the then operative legislative provisions of Western Australia, he was granted parole, in Victoria, after serving approximately ten years’ imprisonment in custody. Under the law of Western Australia, he would only have been on parole for five years, after which (he submitted) the life sentence imposed on him would have expired. He submitted that to construe the parole conditions as operating for his natural life would involve the infliction on him of two, separate punishments, and that he would thus be exposed to double jeopardy. In particular, he was required under the Parole Order to be under the supervision of a community corrections officer for a period of five years, but he is now being required to continue his parole beyond that period.

The plaintiff then submitted that the conditions of the Parole Order have operated unfairly on him. He successfully completed five years supervision with a community corrections officer. For ten years he was then left unsupervised, enjoying what he describes as ‘the benefits of unqualified freedom’. Yet twelve months ago he was required to continue supervision under the varied parole conditions advised to him in 2014.

In that context, the plaintiff noted that the Parole Order was made under s 107(1)(b) of the Sentencing Act 1991. On the other hand, if the plaintiff had been granted parole, by exercise of the royal prerogative of mercy under s 28(5) of the Victorian Transfer Act, the Governor, in exercising that prerogative, was obliged to provide the same terms that would have been imposed on the plaintiff had he remained in Western Australia. It was submitted that under Western Australian law, upon exercise of the royal prerogative by the Governor of Western Australia, the period of parole, which would have been granted to him, would be for a maximum of five years. Thus, the plaintiff submitted that he was denied natural justice, in respect of the Parole Order, because the Governor failed to consider the plaintiff’s right and legitimate expectation, under s 28(5) of the Victorian Transfer Act, that the Governor would take into account the position of the plaintiff if he had remained incarcerated in Western Australia.

The next submission made by the plaintiff was entitled ‘lex loci delicti of Western Australia’. The plaintiff submitted that the law of the State of Western Australia should apply to any exercise of the royal prerogative of mercy in respect of the sentence passed on him. He submitted that the law of Western Australia applies, because it is the lex loci delicti, or, alternatively, because of the operation of s 118 of the Constitution. He submitted that by the law of Western Australia, the exercise of the royal prerogative of mercy, in respect of a life sentence, has the effect that that sentence expires five years after the prisoner is released on parole.

Alternatively, it was submitted that if the court were to construe the first condition of the Parole Order in such a manner that the period of parole extended beyond the supervision period of five years, that would contravene the doctrine of the separation of powers, by encroaching on the Parole Order made by the Governor.

The plaintiff then submitted that a construction of the parole conditions, as extending the period of parole beyond the supervision period, was contrary to public policy. He submitted that such a construction would prevent an offender from maximising his prospects for rehabilitation, which would not be in the interests of the community or of the offender.

The plaintiff’s submissions then addressed the second contention, entitled ‘lawful process authorising commitment to prison’.

Under that heading, the plaintiff first submitted that no documentation has been put forward evidencing a valid exercise by the Governor of Western Australia of the royal prerogative of mercy. In particular, he submitted that no document has been put forward evidencing the execution of the pardon by the Governor. Nor has any document been put forward evidencing the signification of the extension of mercy by the Governor to the Chief Secretary, as required by s 679 of the Criminal Code. Thus, the Chief Secretary did not have power to make an order of life imprisonment under s 679 of the Criminal Code. Further, it is submitted that the order should have been signed in 1983 by the Attorney-General (as successor to the office of Chief Secretary), and not by the Minister for Prisons. It was submitted that the order signed by the Minister for Racing in 1992 was not effective, because s 679 of the Criminal Code had been amended so as to delete from it the power to commute a death sentence to a sentence of life imprisonment. It was further submitted that because the death penalty had been abolished in Western Australia in 1984, the order issued by the Minister for Racing and Gaming on 13 October 1992 was ultra vires and void ab initio.

The plaintiff then submitted that the effect of the exercise of the royal prerogative of mercy by the Western Australian Governor was ‘extinguished once the pardon is removed beyond the State in which the pardon issued’. Thus, it was submitted that the plaintiff transferred to Victoria, pursuant to the Victorian Transfer Act, as a prisoner under sentence of death. However, since the abolition of the death sentence in Victoria in 1975, such a sentence no longer exists as a matter of law in this State. It follows, it was submitted, that the plaintiff was no longer under any sentence in Victoria.

Submissions of the intervener (the Attorney-General for the State of Victoria)

Mr C Horan, who appeared on behalf of the intervener, commenced his submissions by questioning whether a writ of habeas corpus would be an available remedy, given that the plaintiff is no longer held in custody. However, he conceded that it may not be necessary to decide that question, since the court, in this case, should exercise its jurisdiction so as to secure that, as far as possible, all matters in dispute are finally and completely determined.[11]
[11]Supreme Court Act 1986 (Vic), s 92(2).

Mr Horan then submitted that the plaintiff is barred by res judicata, or alternatively issue estoppel, or alternatively by Anshun estoppel,[12] from raising any argument as to the validity of the exercise by the Governor of Western Australia of the royal prerogative of mercy in 1983, as to the lawfulness of his transfer to Victoria, and as to his imprisonment in Victoria pursuant to the Victorian Transfer Act. He submitted that those issues had been determined by Harper J in Censori, and may not now be re-litigated by the plaintiff. Alternatively, he submitted that it would be an abuse of the process of the court for the plaintiff in this proceeding to make a collateral challenge to the decision of Harper J in Censori. In support of that proposition, he referred to Broadbent v Medical Board (Qld)[13], Brock v Minister for Home Affairs[14], and R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd.[15]
[12]See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’).
[13](2011) 195 FCR 438, 481-2 [200]-[206] (Greenwood J).
[14](2008) 170 FCR 434, 446-8 [68]-[76] (Lindgren and Tracey JJ).
[15](1987) 17 FCR 26, 34 (Wilcox J).

In particular, Mr Horan submitted that it was not open to the plaintiff to challenge the validity of the process, by which the plaintiff’s original sentence was commuted to one of life imprisonment by exercise of the royal prerogative of mercy pursuant to s 679 of the Criminal Code. Thus, it was not open to the plaintiff to make submissions that he remained under sentence of death at the time of his transfer to Victoria.

In addition, s 28(5) of the VictorianTransfer Act preserved the exercise, by the Governor of the State of Victoria, of the royal prerogative of mercy in relation to the plaintiff as if he had been convicted and sentenced to life imprisonment by a Victorian court. Section 107(1)(b) of the Sentencing Act expressly conferred on the Governor of Victoria power to exercise that prerogative by directing the plaintiff’s release on parole ‘under and subject to the Corrections Act’. The conditions imposed by the Parole Order did not relevantly differ in nature from conditions of parole imposed under the Corrections Act. The exercise by the Governor of the prerogative of mercy in accordance with s 107(1)(b) of the Sentencing Act did not, it was submitted by the defendant, ‘temper’ a previous exercise of the prerogative of mercy by the Governor of Western Australia. Rather, it was based on the sentence that was deemed to have been imposed on the plaintiff by a court of the State of Victoria.

Thus, Mr Horan submitted that the Governor of Victoria, in 1994, was empowered, by s 28(5) of the VictorianTransfer Act, to exercise the prerogative of mercy in relation to the plaintiff. He submitted that, accordingly, under s 107(1)(b) of the Sentencing Act 1991, the Governor had power to direct that the plaintiff be released on parole ‘under and subject to the Corrections Act 1986’. That power extended to the imposition of conditions of parole.[16] Further, s 55(1) of the Corrections Act makes it clear that the period of the plaintiff’s parole, pursuant to the order made by the Governor in 1994, was the term of the sentence of imprisonment imposed on the plaintiff, namely, imprisonment for the term of his natural life.
[16]R v Governor of Pentridge; Ex parte Arthur [1979] VR 304, 307-8 (Young CJ) (‘Arthur’).

Accordingly, when the plaintiff was released on parole, he was then subject to a sentence of imprisonment for life, and, therefore, the period of his parole was for the term of his life. His release on parole was, and remained, under and subject to the Corrections Act. Section 74(5) of that Act confers power on the Board to vary the conditions of the plaintiff’s parole. In light of the mandatory conditions introduced in 2014, it was necessary and appropriate for the Board to exercise that power so as to vary the plaintiff’s parole conditions.

Further, Mr Horan submitted that there was nothing in the 1994 Parole Order that suggested that the Governor intended to remit any portion of the plaintiff’s sentence of imprisonment for life. The reference, in that Order, to the period of five years, related to the period of supervision under condition 1 of the Parole Order, and did not constitute the term of the period of parole. Indeed, he submitted, it is doubtful whether, under s 107(1)(b) of the Sentencing Act, the Governor has the power to affect or reduce the term of a sentence, which, in this case, was a life sentence.

Mr Horan further submitted that the Parole Order was made under s 107 of the Sentencing Act, not under s 28(5) of the Victorian Transfer Act. Accordingly, in making that order, the Governor was not obliged to take into account the possible or probable position, that might have applied to the plaintiff, had he remained as a prisoner in Western Australia, rather than being transferred to Victoria under the Victorian Transfer Act. In any event, Mr Horan pointed out that the plaintiff had not sought relief in the nature of certiorari setting aside the Parole Order, and thus, even if there was a want of natural justice in the making of that Order, it nevertheless stood as a valid Parole Order in respect of the plaintiff.

Finally, Mr Horan submitted that the 2014 directions given to the plaintiff by the Parole Board were a valid exercise by the Board of its statutory power under s 74(5) of the Corrections Act to impose additional terms and conditions on a Parole Order, or to vary the terms and conditions to which a Parole Order is subject.

Plaintiff’s submissions in reply

The plaintiff made detailed oral and written submissions in response to the submissions made on behalf of the intervener.

The plaintiff submitted that a writ of habeas corpus is available to a person, who is under partial restraint, such as being subject to the terms and conditions of a Parole Order.[17]
[17]Victorian Council for Civil Liberties Incorporated v Minister for Immigration & Multicultural Affairs (2001) 182 ALR 617 (North J); Antunovic v Dawson & Anor (2010) 30 VR 355 (Bell J); Jones v Cunningham 371 US 236 (1963) (Black J).

The plaintiff then contended that the doctrines of res judicata, issue estoppel, Anshun estoppel, and abuse of process, do not apply to this case. In particular, he submitted that, this being a criminal case, the principles of issue estoppel do not apply to it.[18] The principles of res judicata only apply in a limited respect to criminal proceedings, consisting of pleas of autrefois acquit and autrefois convict, neither of which are relevant to the present proceeding. Further, the parties to the present proceeding are not the same as the parties in the proceeding before Harper J. In addition, the cause of action now agitated (the proper construction of the Parole Order) is not the same cause of action as that with which the previous proceeding was concerned.
[18]Rogers v R (1994) 181 CLR 251 (‘Rogers’).

The plaintiff contended that the principles, stated by the High Court in Anshun,[19] do not apply. He submitted that in the previous proceeding Harper J’s decision was based on the assumption by his Honour of a fact in issue (the conditional pardon) which was not proven in evidence, in circumstances in which the defendants bore the onus of proving that fact.
[19](1981) 147 CLR 589.

The plaintiff further submitted that the principles relating to the abuse of process do not apply to an application for relief by way of habeas corpus. In support of that proposition, he relied on the decision of the Full Court in Williamson v Director of Penal Services,[20] and the decision of Green CJ in Trotter v R.[21]
[20][1959] VR 205, 206.
[21][1977] Tas SR 75, 76–7 (‘Trotter’).

The plaintiff then made a number of detailed submissions concerning the decision of Harper J in Censori. He submitted that the exercise of the royal prerogative of mercy by the Governor of the State of Western Australia was an administrative, and not a judicial, act. He submitted that Harper J erred in holding that the sentence of life imprisonment, which was a condition of the pardon, had the force of a sentence of the Supreme Court of Victoria. He submitted that his Honour incorrectly vested ‘this commuted life sentence with “judicial power” and thereby (brought) this sentence within the operation of the Sentencing Act 1991 and Corrections Act 1986’. He submitted that the commuted life sentence did not come within the provisions of the Corrections Act or the Sentencing Act. Thus, the Parole Board had no power to change the conditions of the parole order made by the Governor of Victoria. Pursuant to that order, the plaintiff’s life sentence was commuted to five years on parole.

Finally, the plaintiff submitted that the combined effect of s 705 of the Criminal Code and s 34B of the Offenders Probation and Parole Act 1963 (as it was then in force) was that the plaintiff was entitled to parole, in Western Australia, after he had served 10 years imprisonment there. Upon the expiration of a further five years parole, he submitted, his life sentence would have expired. However, he was prevented from observing that aspect of the condition of the pardon granted to him by the Governor of Western Australia. Accordingly, he submitted, the pardon so extended to him became absolute. He submitted that the only disposition, thus affecting him, was the Parole Order made by the Governor of Victoria. He contended that that Order did not have, as a condition of it, a sentence of life imprisonment. Rather, the order required him to comply with the nine specified conditions contained in it, after which the order itself expired.

The issues

The competing submissions, that I have just summarised, raise the following five issues, namely:

(1)Whether the exercise of the royal prerogative of mercy by the Governor of Western Australia on 31 May 1983 was effective to impose on the plaintiff a sentence of life imprisonment, and whether, on his transfer to Victoria, the plaintiff was subject to a sentence of life imprisonment in this State. Those issues raise the question whether the plaintiff is barred, by the principles of res judicata, issue estoppel, Anshun estoppel, or abuse process, from agitating them in this proceeding.
(2)Whether the exercise of the royal prerogative of mercy by the Governor of Victoria on 20 May 1994 was directed to the sentence of death imposed on the plaintiff on 17 June 1982 by the Supreme Court of Western Australia (the sentence of death), or whether it was directed to the term of life imprisonment that was a condition of the pardon granted by the Governor of Western Australia to the plaintiff.
(3)Whether, on its proper construction, the exercise of the royal prerogative of mercy by the Governor of the State of Victoria imposed on the plaintiff a sentence of five years’ imprisonment, to be served under supervision on parole, after which it expired.
(4)Whether, in any event, condition 5 and condition 9 of the exercise of the royal prerogative of mercy by the Governor of Victoria are valid.
(5)Whether the conditions of parole, imposed by the Parole Board on 1 July 2014, are valid and effective.

The first issue: the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy

In considering the first issue, outlined above, it is first necessary to determine the question whether the plaintiff is barred, by the principles of res judicata, issue estoppel, ‘Anshun’ estoppel or abuse of process, from submitting that the exercise of the royal prerogative of mercy by the Governor of Western Australia was not effective to subject the plaintiff to a sentence of life imprisonment, and that on his transfer to Victoria, he was not subject to a sentence of life imprisonment.

Res judicata; issue estoppel, ‘Anshun’ estoppel, and abuse of process

I do not consider that the principles of res judicata have any application in respect of the decision of Harper J in Censori v Holland. That doctrine applies where a cause of action, claimed to have been put in issue in the previous proceeding, has passed into judgment in that proceeding.[22] In the earlier proceeding, the validity of the order made by the Governor of Western Australia, and the effect of the plaintiff’s transfer to Victoria, were put in issue, but they were not the subject of any specific cause of action that was the subject of adjudication in that proceeding. Accordingly, the plaintiff is not barred by the principles of res judicata from raising those matters in the current proceeding.
[22]Blair v Curran (1939) 62 CLR 464, 532 (Dixon J) (‘Blair’); Jackson v Goldsmith (1950) 81 CLR 446, 466 (Fullagar J); Rogers (1994) 181 CLR 251, 272 (Deane and Gaudron JJ).

The plaintiff has contended that the doctrine of issue estoppel does not apply to the present proceeding, because the previous proceeding was criminal in nature. It is well established that the principles of issue estoppel are not available in respect of issues decided in criminal proceedings.[23] It is debatable whether the proceedings before Harper J, in Censori v Holland, were criminal for the purposes of the application of that principle. However, it is not necessary for me to determine that question, because I do not consider that, in any event, the principles of issue estoppel would apply in this case.
[23]R v Storey (1978) 140 CLR 364, 372 (Barwick CJ), 388 (Gibbs J), 400-401 (Mason J); Rogers (1994) 181 CLR 251, 254 (Mason CJ), 278 (Deane and Gaudron JJ).

A judgment in a previous proceeding only raises an issue estoppel against the parties to the proceedings in which it was given, and against their ‘privies’.[24] There are three recognised classes of privies: privies in blood (for example, an ancestor and his or her heir); privies in law (for example, a bankrupt and his or her trustee)[25]; and privies in estate or interest (for example, a testator and a devisee).[26]
[24]Blair, 531-2 (Dixon J).
[25]Harris v Truman (1882) 9 QBD 264 (Lord Coleridge LCJ, Brett LJ, Holker LJ).
[26]Dalton v Fitzgerald [1897] 2 Ch 86, 93 (Lopes LJ).

In Ramsay v Pigram,[27] the High Court considered the question of whether there was privity of interest between a party to a proceeding, and a party in a previous proceeding concerning the same subject matter. In that case, the respondent brought a proceeding of negligence against the appellant, who was appointed as nominal defendant to represent the government of New South Wales, to recover damages for personal injuries caused in a collision between a vehicle driven by a New South Wales police officer and a vehicle driven by the respondent. In a previous proceeding, the police officer had successfully claimed damages against the respondent for injuries arising out of the same collision. Accordingly, the appellant pleaded that the respondent was estopped, in the instant proceeding, from asserting negligence on behalf of the police officer. The High Court held that estoppel did not apply against the respondent. In particular, the Court held there was no privity of interest between the appellant (the nominal defendant) and the police officer so as to entitle the appellant to rely on the findings in the previous proceeding, in which the police officer had succeeded against the respondent.
[27](1968) 118 CLR 271 (‘Ramsay’).

In reaching that conclusion, Barwick CJ stated:[28]

Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. But I am unable to conclude that the Government or the Police Department was in this sense a privy of the police officer. The basic requirement of a privy in interest is that the privy must claim through or under the person of whom he is said to be a privy. Here it is quite clear that the Government had no interest in the action between the respondent and the police officer: nor can it be said that the action brought by the police officer was brought by him in any sense on behalf of the Government or that in relation to the defence of contributory negligence the respondent could have been treating the government as the real “defendant” to that claim. In every respect the action between the respondent and the police officer was personal to each of them, neither being in any sense in relation to the action or any of the issues involved in it, representative of the other. Nor can it be said that the Government in any sense claims under or in virtue of the police officer or of any right of his, or that it derives any relevant interest through him.

[28]Ibid, 279.

There are some suggestions in the authorities that the concept of privity of interest, in this context, may be broader than that stated by Barwick CJ in Ramsay. In particular, in Official Custodian for Charities v Mackey (No 2),[29] Nourse J considered that earlier authorities established the principle that there must be a sufficient degree of identification between the two parties ‘to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party’. However, that approach has not gained favour in the Australian courts and does not reflect the state of the law in this country. Rather, in order to ascertain whether there is relevant privity of interest between a party to the previous litigation and a party to the present litigation, it is necessary to determine whether one of those parties claimed under or through the other party.[30]
[29][1985] 1 WLR 1308, 1316.
[30]See for example Trawl Industries of Australia Pty Ltd (in liq) & Ors v Effem Foods Pty Ltd (1992) 108 ALR 335, 345 (Gummow J); Affirmed on appeal Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd & Ors (1993) 115 ALR 377, 395 (Northrop and Lee JJ), 407-8 (Burchett J); Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 (16 March 2010), [59]-[69] (Giles JA) (‘Champerslife’).

As I stated, in the previous proceeding, the plaintiff claimed relief against the Governor of the prison in which he was then incarcerated, and against the former Director General of the Office of Corrections. In the present proceeding, the plaintiff claims relief against the Chairman of the Adult Parole Board and the Governor of the State of Victoria. In 1992, s 4(1) of the Corrections Act 1986 provided that any person, who was detained in custody in a prison or was serving a sentence of imprisonment, was deemed to be in the custody of the Director General. Section 4(2)(a) provided that a person, who was on parole, was not to be regarded as being in the Director General’s custody. Section 4 was repealed by the Corrections (Custody) Act 2001, and replaced with s 6A, which provides that a person is deemed to enter the legal custody of the Secretary of the Department of Justice when the person is taken into physical custody pursuant to an order for imprisonment made in relation to that person. That Act also introduced s 6C(1), which provided that a person, who is on parole, is not regarded as being in the Secretary’s legal custody.

The Parole Board was established by s 61 of the Corrections Act. Section 74 provides for the grant of parole by the Parole Board, for the imposition of terms and conditions on a Parole Order, and (by subsection (5)) for the imposition of additional terms and conditions on the Parole Order by the board. Section 76 provides that until the relevant parole period elapses, the person, who is released on parole, is to be regarded as still being ‘under sentence’.

That examination of the Corrections Act demonstrates that there is no privity of interest between the two defendants to the present proceeding and the defendants to the previous proceeding. In particular, in the previous proceeding, the Director General of Prisons, and the Governor of the prison in which the plaintiff was then held, were sued in their capacity as the persons who had custody of the plaintiff. Neither defendant is sued in this case in the same capacity, or on the same basis. The status of neither defendant in the present proceeding was derived ‘under or through’ either of the defendants in the previous proceeding.

In a broad sense, it might be contended that the two defendants, in the previous proceedings, were the persons responsible for the then disposition of the plaintiff according to the sentence of life imprisonment to which he was subject. Equally, it might be contended that, by virtue of the grant of parole to the plaintiff, the first defendant (the Chairman of the Parole Board) is the person who is responsible for the current disposition of the plaintiff under that sentence. However, there is no authority which supports the proposition that, in such a case, there is any ‘privity of interest’ between the defendants in the previous proceeding and the present first defendant. In the absence of such authority broadening the scope of the concept of ‘privity of interest’ in that way, I am constrained to hold that there is no such privity in this case.

For those reasons, I do not consider that the principles of issue estoppel apply in respect of the previous decision of Harper J in Censori v Holland.

Nor do I consider that the estoppel, described by the High Court in Anshun,[31] applies to this proceeding. That principle provides that where a particular matter becomes the subject of litigation, the parties to that litigation are required to bring forward the whole of their case, and the court will not (generally) permit the same parties to open the same subject of litigation, in respect of the matter, that might have been brought forward in that proceeding, but which was not so brought forward.[32] Self-evidently, those principles do not apply in the present case. The question, of the validity of the plaintiff’s transfer to Victoria, was raised by him in the previous proceeding. That is, the plaintiff did litigate that matter. However, as I have stated, the parties in the present proceeding are different to the parties in the previous proceeding. Accordingly, the principles in Anshun do not apply.[33]
[31](1981) 147 CLR 589.
[32]Ibid, 598; Henderson v Henderson (1843) 3 Hare 100, 115; 67 ER 313, 319.
[33]Champerslife [2010] NSWCA 33 (16 March 2010) (Giles JA).

It follows that the plaintiff is not precluded, by the principles of res judicata, issue estoppel or Anshun estoppel, from litigating, in the present proceeding, the validity and effect of the order made by the Governor of Western Australia, and his status, as a person subject to a life sentence, consequent upon his transfer to Victoria pursuant to the provisions of the Victorian Transfer Act. The question, then, is whether it would be an abuse of the process for the plaintiff to re‑litigate, in this proceeding, those issues that were determined against him by Harper J in Censori v Holland.

There is now a substantial body of authority for the proposition that a proceeding, or the agitation of an issue in a proceeding, may be, or may involve, an abuse of process, where the proceeding, or the issue, involves the re‑litigation of an issue determined in a previous proceeding, particularly where such re‑litigation might constitute a collateral attack on the decision in the previous proceeding.

The starting point for that principle is the decision of the House of Lords in 1889 in Reichel v Magrath.[34] In that case, the appellant, Reichel, had brought an action against his bishop, and the patrons of his benefice, claiming a declaration that an instrument of resignation, that he had executed, was void, and claiming an injunction to restrain the bishop from presenting any other person to the benefice in his place. Judgment in that proceeding was given against the appellant. Subsequently, the respondent (the Reverend Magrath) was appointed to the benefice as the appellant’s successor. He brought an action against the appellant, claiming a declaration that he was the vicar, and a declaration to restrain the appellant from depriving the respondent of the use and occupation of the house and lands of the benefice. In his statement of defence, the appellant pleaded the same case, that he had pleaded in the original proceeding brought by him against his bishop. The Court of Queen’s Bench Division, on the application of the respondent, made an order that the statement of defence be struck out, and that judgment be entered for the respondent. That order was affirmed by the Court of Appeal, on the grounds that the defence, pleaded by the appellant, constituted an abuse of the process of the court. The appeal by Reichel to the House of Lords was dismissed. Lord Halsbury LC stated the relevant principles as follows:

… I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. … it surely must be in the jurisdiction of the court of justice to prevent the defeated litigant raising the very same question which the court has decided in a separate action. I believe there must be an inherent jurisdiction in every court of justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.[35]

[34](1889) 14 App. Cas. 665 (‘Reichel’).

[35]Ibid, 668.

The principle, so stated by the House of Lords in Reichel, has been cited with approval by the High Court. In Walton v Gardiner,[36] Mason CJ, Deane and Dawson JJ, in their joint judgment, cited the decision in Reichel as authority for the following proposition:

… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance 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.

[36](1993) 177 CLR 378, 393.

In Rogers,[37] McHugh J described the decision of the House of Lords, in Reichel, as a ‘paradigm example’ of a case of an abuse of process

… where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings.

Relevantly, his Honour also referred to the decision of the House of Lords in Connelly v Director of Public Prosecutions[38] as authority for that proposition.

[37](1994) 181 CLR 251, 287; see also 253 (Mason CJ); 280 (Deane and Gaudron JJ).

[38][1964] AC 1254, at 1361–2 (Lord Pearce).

The principle, that I have just discussed, has been applied in a number of decided cases in Australia.

In Brock v Minister for Home Affairs,[39] the applicant unsuccessfully brought proceedings in the Federal Court against the United States of America to review an order by a magistrate, under s 19 of the Extradition Act 1988 (Cth), that determined his eligibility for surrender in relation to offences for which the United States sought his extradition. In further proceedings against the Minister for Home Affairs, the applicant sought to challenge the validity of the issue by the Minister of a notice of receipt of extradition request under s 16(1) of the Act. The Full Court of the Federal Court (Gray J dissenting) held that the further proceedings were an abuse of the process. In their joint judgment, Lindgren and Tracey JJ, came to that conclusion, on the basis that the proceeding involved a re‑litigation of the same issue that had been determined in the earlier proceeding. Their Honours, quoting Mason CJ in Rogers,[40] considered that the re‑litigation of that issue would be an abuse of the process, because it was ‘… calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue’.
[39](2008) 170 FCR 434.
[40](1994) 181 CLR 251, 256–7.

In Broadbent v Medical Board of Queensland,[41] the applicant sought to re‑litigate, in the Federal Court, issues that had been determined by the Queensland Civil and Administrative Tribunal, the Supreme Court of Queensland and the Court of Appeal of Queensland, relating to the same subject matter, namely, the validity of decisions and conduct of the medical board in commencing disciplinary proceedings against him. Greenwood J held that the proceeding constituted a collateral attack on the decisions of the Queensland Civil and Administrative Tribunal and the Court of Appeal of Queensland, and that, as such, it constituted an abuse of the process.[42] In reaching that conclusion, his Honour applied the observations of Lord Diplock in Hunter v Chief Constable of West Midlands Police,[43] namely:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

[41](2011) 195 FCR 438.

[42]Ibid, 483 [212].

[43][1982] AC 529, 540.

The same principle was applied in Lewis v Hillhouse & Ors.[44]In that case, the plaintiff sued his former solicitors who had acted for him in his criminal trial. Moynihan J held that the proceedings constituted an abuse of process, because they involved a collateral challenge to the plaintiff’s criminal conviction.[45]
[44][2005] QSC 020; SC No 2144 of 2004; 23 February 2005.
[45]Ibid, [40] and [49]; see also Chamberlains v Lai [2007] 2 NZLR 7, [30] (Elias CJ, Gault and Keith JJ).

The principles, relating to abuse of process, have also been applied in Victoria. In Kermani v Westpac Banking Corporation,[46] the Court of Appeal held that proceedings by the plaintiff constituted an abuse of the process, because they involved re‑litigating claims dealt with in earlier proceedings in which a company, controlled by the plaintiff, was a party. In the course of his judgment, Robson AJA (with whom Neave and Harper JJA agreed) outlined the relevant principles relating to abuse of process in some detail.[47] Helpfully, his Honour stated:
[46](2012) 36 VR 130.
[47]Ibid, 153 [97].

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:
(a)the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
(c)the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)the extent of the oppression and unfairness to the other party if the issue was re‑litigated and the impact of the re‑litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process …

Those principles were applied by J Forrest J in his recent decision in Doe v Howard & Anor.[48] In that case, the plaintiff had successfully sued her former employers, the defendants, in the United States District Court for the eastern district of Virginia, for damages. She obtained a judgment in excess of US$3 million against the defendants. The plaintiff then instituted a proceeding against the first defendant to enforce the judgment of the United States court. The defendant resisted that proceeding. In her defence, she sought to re‑agitate the merits of the allegations made by the plaintiff in the proceeding in the United States court. J Forrest J held that the defendant had no reasonable prospect of establishing that defence. His Honour further held that to permit the defence to be maintained at trial would be an abuse of process, since it would constitute an attempt to re‑litigate the issues tried and determined in the United States proceeding.[49]
[48][2015] VSC 75 (6 March 2015).
[49]Ibid, [197]–[210].

The plaintiff sought to avoid the application of those principles to this case. He submitted that the present proceeding is criminal in nature, and that the principles, relating to abuse of process, do not apply to preclude a person, who is subject to the criminal processes, making more than one successive application for a writ of habeas corpus, even if those applications are made on the same grounds. In support of that proposition, he relied on the decision of Green CJ of the Supreme Court of Tasmania in Trotter v R.[50]
[50][1977] Tas SR 75.

In my view, the decision of Green CJ in Trotter does not preclude the application of the principles for abuse of process to a proceeding such as the present case. In Trotter, the applicant had been convicted and sentenced to a term of imprisonment. The application before Green CJ was his fifth application for bail pending his appeal to the Full Court of Tasmania. Each of the four previous applications had been heard by a different judge, and had been refused. His Honour held that the application was incompetent. In reaching that decision, Green CJ noted that, as an exception to the principles of res judicata, it had been long established at common law that an applicant may make a number of successive bail applications, in the form of an application for habeas corpus, notwithstanding that they are made on the same grounds and on the same evidence.

The claim made by the plaintiff in the present proceeding is not an application for bail. It is a very different type of proceeding. There is nothing in the decision in Trotter which precludes the principles of abuse of process from applying to an application for habeas corpus, in a case such as this, where the application involves the re‑litigation of issues decided in earlier proceedings. On the other hand, in my view, the decision of Edmonds J in Vasiljkovic v O’Connor[51] is a direct authority for the proposition that those principles may apply to a case involving the re‑litigation of such issues on an application for relief in the nature of habeas corpus.
[51](2010) 276 ALR 326.

In that case, the applicant was arrested pursuant to a provisional arrest warrant issued by a federal magistrate under s 12(1) of the Extradition Act. The magistrate held that he was eligible for surrender to the Republic of Croatia, and issued a warrant pursuant to s 19(9) of the Act. The applicant ultimately failed in his application to the Federal Court to review that decision. Subsequently, the applicant commenced a second proceeding seeking declarations, that he was not an ‘extraditable person’ for the purposes of the Act, and seeking orders in the nature of a writ of habeas corpus. Edmonds J dismissed the proceeding on a number of grounds, one of which was that the proceeding constituted an abuse of process, insofar as the applicant sought an order in the nature of the writ of habeas corpus that was inconsistent with the result of the earlier proceeding. His Honour stated:

If the applicant were to succeed on these claims, and in the ultimate conclusion that he is not detained pursuant to lawful authority, then such a determination would conflict with an earlier adjudication in the s 21 proceeding that the applicant be committed to prison pursuant to the s 19 warrant. Prosecution of this proceeding “is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but it is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue”:[52] …
…
By bringing this proceeding, the applicant seeks to re‑agitate the same matter that was raised years earlier in a previous proceeding, which proceeding was dismissed, in circumstances where the applicant did not take measures at the time of the earlier proceeding to maintain, or subsequently re‑enliven, that proceeding. In these circumstances, the bringing of this proceeding constitutes an abuse of process.[53]

[52]Ibid, 341 [78]; Rogers at 257.

[53]Ibid, 342 [83].

In the earlier proceeding, before Harper J, the issues, as to the effectiveness of the exercise by the Governor of Western Australia of the royal prerogative of mercy to impose a sentence of life imprisonment on the applicant, and the plaintiff’s status as a person subject to a term of life imprisonment in Victoria consequent upon his transfer to this state, were directly in issue. The plaintiff was the moving party in litigating those issues in the previous proceeding. Likewise, he is the moving party in litigating those issues in the present proceeding. In the previous proceeding, the two defendants were the persons who were legally responsible for the plaintiff’s disposition pursuant to the sentence of life imprisonment, to which he was held to be subject. In the present proceeding, the first defendant, as representing the parole board, is responsible for the plaintiff’s disposition consequent upon the grant to him of parole in respect of that sentence.

In the previous proceeding, the issues, raised by the plaintiff, as to the effect of the exercise of the royal prerogative of mercy by the Governor of Western Australia, and his status as a person subject to a term of life imprisonment in Victoria, were fully argued on both sides. I note that, in his reasons for judgment, Harper J, at the outset, commended the plaintiff, and counsel for the defendants, for the care and thoroughness with which their submissions were made before him. In the present proceeding, the plaintiff, and Mr Horan, each devoted the same care and thoroughness in making their submissions to me on all the issues. In the course of the proceeding, I commended the plaintiff for the thoroughness of his research, and the careful and methodical manner in which he had structured and made his submissions to me. Thus, in both proceedings, and in particular in the previous proceeding, the issues concerning the effect of the exercise by the Governor of Western Australia of the prerogative of mercy, and the plaintiff’s status as serving a term of life imprisonment in Victoria, were fully argued.

In that context, the previous 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 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.

The re‑litigation, in the present proceedings, of the issues of the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy, and of the plaintiff’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. The re‑litigation of those issues would thus be contrary to the public interest in the finality of judicial decisions. Further, and significantly, if this Court now were to come to a different conclusion than that reached by Harper J as to those issues, there would then be two inconsistent decisions of the court relating to the legal status of the plaintiff. The existence of two such inconsistent decisions would bring the legal system into disrepute, and, in the words of Mason CJ in Rogers,[54] would be ‘… calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue’.
[54](1994) 181 CLR 251, 257.

For those reasons, I accept the submission by Mr Horan that the re‑litigation in these proceedings of the issues, as to the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy, and the status of the plaintiff, on his transfer to Victoria, as a person subject to a sentence of life imprisonment, would be an abuse of the process of the court. It follows that the decision of Harper J, in respect of those issues, is binding in the present proceeding.

Notwithstanding that conclusion, I shall, nevertheless, consider the submissions made by the plaintiff as to the effect of the exercise of the royal prerogative of mercy by the Governor of the State of Western Australia, and the status of the plaintiff consequent upon his transfer to Victoria pursuant to the provisions of the Victorian Transfer Act. I do so, not only in the event that my conclusions as to abuse of process are incorrect, but also out of deference to the careful arguments made to me by the plaintiff and Mr Horan in respect of those issues.

The effect of the exercise of the royal prerogative of mercy by the Governor of the State of Western Australia

The plaintiff’s submissions, relating to the exercise of the royal prerogative of mercy by the Governor of the State of Western Australia, were directed to establishing that, when he was transferred to Victoria, he was subject to a ‘head sentence’, comprising the death sentence, and that, accordingly, he is not subject to a sentence of life imprisonment.

The minute of the Executive Council of Western Australia, dated 31 May 1983, formed part of the evidence in the proceeding. In that minute, the council advised the Governor that, in exercise of the royal prerogative and pursuant to s 679 of the Criminal Code, his Excellency should extend the royal mercy to the plaintiff in respect of the sentence of death which had been imposed on him, subject to the condition that he serve a sentence of imprisonment for life. That minute was signed by the Governor as approving the advice given to him. I accept that that document constituted the instrument of pardon granted to the plaintiff, notwithstanding that it was not in the form in which pardons were, historically, sealed and delivered.[55]
[55]William Blackstone, Commentaries on the Laws of England (The University of Chicago Press, first published 1765, 1902 ed), Vol 4, Ch 31, 1767-1773.

In addition, in his affidavit, the plaintiff himself has deposed to the exercise of the royal prerogative of mercy in his favour by the Governor of Western Australia. The order by the Minister for Prisons of Western Australia dated 30 June 1983, which is in evidence, recites that the Governor in Executive Council on 31 May 1983 ‘commuted the sentence of death to imprisonment for life’. While the order, signed by the Minister for Prisons, was not of legal effect, nevertheless it is part of the documentary material before me. Pursuant to ss 60, 63 and 64 of the Evidence Act 2008, it is admissible to prove the exercise by the Governor of Western Australia of the royal prerogative of mercy.

It is clear that the Chief Secretary of Western Australia did not (and could not) make an order of strict security of life imprisonment as required by s 679 of the Criminal Code. Indeed, the Office of Chief Secretary had already been abolished on 19 April 1983. Nevertheless, I agree with Harper J that, notwithstanding the absence of such an order, the direction by the Governor, commuting the sentence of death passed on the plaintiff, on condition that he serve a sentence of life imprisonment, was effective as an order or direction given by law. Upon the grant of that pardon, the plaintiff thus became subject to a sentence of life imprisonment imposed on him as a result of that order or direction.

Further, I am satisfied that the steps, specified by s 679 of the Criminal Code, were completed. The combined effect of s 3 of the Alteration of Statutory Designations Act 1974, and the designation by the Governor in Council of the Minister for Racing and Gaming pursuant to that section on 18 October 1985, is that that Minister was the person designated to sign the order and allowance referred to in s 679 in the Criminal Code. It is not to the point that, when the Minister signed that document on 13 October 1992, s 679 had been repealed. Notwithstanding the repeal of that provision, it nevertheless had continued operation in respect of persons (such as the plaintiff) who, before the repeal, had been the subject of the grant of the royal prerogative of mercy pursuant to s 679.

The order, signed by the Minister for Racing and Gaming, was not placed in direct evidence in this proceeding. However, it was recited in a timeline of events, that was an exhibit to the plaintiff’s affidavit. The submissions by each side were made based on it. It was not until well into his reply, that the plaintiff raised the fact that the order itself had not been placed in evidence. In that context, the proof of the making of the order, by the exhibit to the plaintiff’s affidavit, is sufficient for the purposes of this proceeding. Accordingly, under s 679 of the Criminal Code, the allowance or order made by the Minister had the effect of a valid sentence passed by the Supreme Court of Western Australia.

In any event, as I have already stated, of itself, the conditional pardon, granted to the plaintiff by the Governor of Western Australia, included an order or direction given by law. Section 27(1)(a) of the Victorian Transfer Act applies to ‘any State sentence of imprisonment’. Section 4 of the Act defines a ‘State sentence of imprisonment’ to include ‘an indeterminate sentence’. That phrase is defined by s 4 to mean ‘a sentence of or order or direction for imprisonment or detention for life’, and to include ‘such a sentence, order or direction imposed made or given by, or by the operation of, an Act or other law’. As I stated, the conditional pardon granted by the Governor of Western Australia constituted an ‘order or direction’ made or given by the operation of the law of Western Australia. Thus, at the time that the plaintiff was transferred to Victoria, he was subject to a ‘State sentence of imprisonment’ for the purpose of s 27 of the Victorian Transfer Act. Section 27(1) has the effect that such a sentence is deemed to have been imposed by a corresponding court of Victoria.

For those reasons, it follows that, upon his transfer to Victoria in 1987, the plaintiff was deemed to be subject to a sentence of life imprisonment imposed by a court of Victoria.

The second issue: was the exercise of the royal prerogative of mercy by the Victorian Governor directed to a life sentence imposed on the plaintiff

The second issue is whether the exercise, of the royal prerogative of mercy by the Governor of Victoria on 20 May 1994, was, or could have been, directed to the life sentence imposed on the plaintiff as a consequence of the exercise by the Governor of Western Australia of the royal prerogative of mercy.

In that respect the plaintiff submitted that it was impermissible for the Governor of Victoria to ‘temper’ a previous act of mercy with mercy. The plaintiff submitted that the sentence of life imprisonment, that was a condition of the exercise by the Governor of Western Australia of the royal prerogative of mercy, was not imposed as a consequence of the exercise of judicial power. He submitted that the Governor of Victoria only had power to exercise the royal prerogative of mercy in respect of a sentence imposed as a consequence of an exercise of judicial power. Thus, he submitted, the exercise by the Governor of Victoria of the royal prerogative of mercy must have been directed to the original sentence of death imposed on him by the Supreme Court of Western Australia on 17 June 1982.

As I stated, the Governor of Victoria made the Parole Order under s 107(1)(b) of the Sentencing Act. That section provides that the Governor may, ‘in any case in which he or she is authorised on behalf of her Majesty to extend mercy to any person under sentence of imprisonment’, do so by directing that that person be released on parole. The submissions by the plaintiff, on the second issue, raise two questions, namely:

(1)Whether the plaintiff was a person ‘under sentence of imprisonment’ for the purposes of s 107(1) of the Sentencing Act.
(2)If so, whether the plaintiff was a person to whom the Governor was ‘authorised on behalf of her Majesty to extend mercy’.

As I have already concluded, s 679 of the Criminal Code had the effect that, consequent upon the exercise by the Governor of Western Australia of the royal prerogative of mercy in his favour, the plaintiff was subject to a sentence of life imprisonment. Further, s 27(1) of the Victorian Transfer Act had the effect that, on the plaintiff being transferred to Victoria, he was deemed to be subject to a sentence of life imprisonment imposed on him by the Supreme Court of Victoria.

The effect of ‘deeming’ provisions in statutes has been discussed in a number of authorities. Such a provision is to be construed in its statutory context, and, particularly, in light of the purpose to which it is directed. While a deeming provision may, and often does, create a statutory fiction, in general the function of such a provision is to define the legal status of a person, thing or state of affairs.[56]
[56]See for example Muller v Dalgety & Company Limited & Anor (1909) 9 CLR 693, 705 (Barton J); Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49, 65-6 (Windeyer J); Rowe v Hughes [1974] VR 60, 68-9 (Winneke CJ, Gillard and Nelson JJ).

The Victorian Transfer Act contains two deeming provisions. The first such provision is s 27(1), which, as I stated, deems a prisoner, who has been transferred to Victoria under a sentence of imprisonment imposed in another State, to be subject to the same term of imprisonment imposed by a corresponding court of Victoria. In a similar manner, s 28(1) provides that where, under a law of a participating State, there has been fixed by a court in respect of a translated sentence a non-parole period, that non-parole period shall be deemed to have been fixed by the corresponding court of Victoria.

Those two provisions do not have any particular work to do, or function, in the Victorian Transfer Act itself. Rather, they were designed to define the status of a transferred prisoner for the purposes of those aspects of the law of Victoria that affect the disposition of prisoners in this State. Thus, for example, the deeming provisions in the Victorian Transfer Act were clearly intended to connect with legislation such as the Corrections Act. Section 6A(1) of that Act provides that a person in respect of whom an ‘order of imprisonment’ is made, is in the custody of the Secretary of the Department of Justice. Section 6(a) of the Act provides that an ‘order of imprisonment’ is (inter alia) a sentence of imprisonment imposed by a court. The deeming provision in section 27 of the Victorian Transfer Act brings a transferred prisoner within the purview of those provisions of the Corrections Act, and thus provides the legal basis upon which such a prisoner is placed within the legal custody of the Secretary of the Department of Justice, for the purpose of serving that prisoner’s sentence of imprisonment in the State.

Similarly, s 28(1) of the Victorian Transfer Act was designed to define the legal position of a transferred prisoner, in respect of whom a non-parole period had been fixed by an interstate court, so that the provisions in the Corrections Act, relating to release on parole, might apply to that prisoner. Section 74(1) of the Corrections Act provides for a grant of parole to a prisoner ‘serving a prison sentence in respect of which a non-parole period was fixed’. The deeming provision in s 28 of the Victorian Transfer Act brings such a prisoner within the power conferred on the Parole Board by s 74(1) of the Corrections Act, so as to enable that prisoner access to his or her entitlement to parole.

The foregoing analysis demonstrates that the deeming provision, in s 27(1) of the Victorian Transfer Act, 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. In that way, the deeming provision in s 27(1) of the Victorian Transfer Act operates to define the status of a transferred prisoner, such as the plaintiff, for the purpose of s 107(1) of the Sentencing Act. Accordingly, it follows that the plaintiff was a ‘person under sentence of imprisonment’ for the purposes of s 107(1).

That conclusion brings me to the second question, namely whether the plaintiff was a person to whom the Governor was ‘authorised on behalf of her Majesty to extend mercy’.

In my view, the plaintiff was such a person for two reasons. First, s 28(5) of the Victorian Transfer Act gave express power to the Governor of Victoria to exercise the royal prerogative of mercy in favour of a person subject to a ‘translated sentence’. The plaintiff was such a person, being subject to a translated section of imprisonment. Therefore, under s 28(5), the Governor was authorised to extend mercy to the plaintiff.

Secondly, apart from s 28(5), the plaintiff was, in any event, a person to whom the Governor was ‘authorised on behalf of her Majesty to extend mercy’ by virtue of the powers reposed in the Governor of the State of Victoria.

The power of the Governor to grant a pardon was derived from clause 9 of the Letters Patent under the Great Seal of the United Kingdom dated 2 January 1901.[57] Clause 9 provided that the Governor:

… may grant to any offender convicted in any court of the State … a pardon, either free or subject to lawful conditions, or any remission of the sentence passed on such offender, or any respite of the exercise of such sentence for such period as the Governor thinks fit.

[57]Victoria Government Gazette, No 128, 28 December 1900.

The power of pardon, invested in the Governor by clause 9, to pardon an offender or remit a sentence, is a beneficial and relieving power. As such, it should be given a liberal construction.[58] As I have stated, the effect of s 679 of the Criminal Code, and s 27(1) of the Victorian Transfer Act, is that, for the purposes of Victorian law, the conditional pardon, granted by the Western Australian Governor, is deemed to be, and thus constitutes, a sentence of life imprisonment imposed on the plaintiff by a court of law in Victoria. In my view, on its proper construction, the phrase ‘offender convicted in any court of the State’, in clause 9 of the Letters Patent, includes an offender deemed, as a matter of law, to have been convicted and sentenced by a court in Victoria. Accordingly, the Governor was authorised to extend mercy to the plaintiff by clause 9 of the Letters Patent. It follows that, under s 107(1)(b) of the Sentencing Act 1991, the Governor had the specific power to extend mercy to the plaintiff by directing that he be released on parole.
[58]See, for example, Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328, 335 (Fullagar J); Dodd v Executive Air Services Pty Ltd [1975] VR 668, 679 (Newton J), 682 (Norris J); Waters & Ors v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ, Gaudron J), 394 (Dawson and Toohey JJ), 406-7 (McHugh J); IW v The City of Perth & Ors (1997) 191 CLR 1, 12 (Brennan CJ, McHugh J), 39 (Gummow J), AB v State of Western Australia (2011) 244 CLR 390, 402 [24].

Thus, the exercise by the Governor of Victoria of the royal prerogative of mercy was directed to the life sentence, to which the plaintiff was subject when he was transferred to the State of Victoria, and which, by virtue of s 27(1) of the Victorian Transfer Act, was deemed to have been imposed by the Supreme Court of Victoria. It follows that, upon the exercise by the Governor of the State of Victoria of the royal prerogative of mercy, the parole so granted to the plaintiff was in respect of the sentence to which he was then subject, namely, a sentence of life imprisonment.

As I have stated, the submission made on behalf of the plaintiff was that the Governor did not have power to make a Parole Order in respect of the sentence of life imprisonment that was the result of the exercise by the Governor of Western Australia of the prerogative of mercy. Thus, the plaintiff submitted, the Parole Order was directed to the sentence of death imposed on him by the Supreme Court of Western Australia in 1982. It follows, so the argument went, that the plaintiff, upon his release pursuant to the Parole Order, was not subject to a sentence of life imprisonment.

As I have just concluded, I consider that the Governor of Victoria did have the power, under s 107 of the Sentencing Act, to make a Parole Order in respect of the life sentence to which the plaintiff was then subject. However, if the Governor did not have that power, then the conclusion contended for by the plaintiff, would not follow for two reasons. First, the Parole Order could not apply to the sentence of death imposed on the plaintiff in 1982. That sentence had already been effectively commuted by the exercise of the royal prerogative of mercy, by the Governor of Western Australia, in 1983. Secondly, the Parole Order, made by the Governor of Victoria, was specifically directed to the life sentence imposed on the plaintiff as a consequence of the exercise of mercy by the Western Australian Governor. It was not (nor could it have been) directed to the sentence of death originally imposed on him by the Supreme Court of Western Australia. Thus if (contrary to my conclusion) the Governor of Victoria did not have power to make the parole order in favour of the plaintiff in 1994, it would follow that the Parole Order itself was ultra vires, and void. In those circumstances, the plaintiff would still be subject to a sentence of life imprisonment without parole.

However, as I have concluded, the Governor of Victoria did have the power to make the Parole Order in 1994. It follows that the plaintiff is, therefore, on parole, pursuant to that Order, in respect of the sentence of imprisonment for life to which he was subject at the time the order was made.

The third issue: construction of the Parole Order

The third issue, raised by the submissions of the plaintiff, concerned the effect and construction of the Parole Order made in consequence of the exercise by the Governor of Victoria of the royal prerogative of mercy on 30 May 1994

In my view, it is plain, from the face of the document executed by the Governor, that the Parole Order did not, in any way, affect or modify the sentence of life imprisonment to which the plaintiff was subject, save to direct his release on parole in respect of that sentence. There is no suggestion, in the order signed by the Governor, that the Order purported, or was intended, to affect, reduce or remit that life sentence. Rather, the Parole Order, in its opening paragraphs, expressly noted that the plaintiff was subject to the sentence of imprisonment for life, consequent upon the commutation of his death sentence by the Western Australian Executive Council. The Order specifically directed the release of the plaintiff on parole, under s 107(1) of the Sentencing Act 1991, in respect of that sentence. Indeed, s 107 does not empower the Governor to remit or affect the sentence, in respect of which the Order is made under that section.

Further, it is clear that the period of five years, prescribed in the first condition stated on the Order, constituted the period, during which the plaintiff was to be subject to supervision by the community corrections order. That condition did not prescribe the length of the period of parole, nor, more significantly, did it affect, in any way, the sentence of life imprisonment, to which the plaintiff was subject.

As I have noted, the plaintiff, in his submissions, relies on submissions based on double jeopardy, unfairness and public policy. For the purposes of considering those submissions, I am prepared to assume that the provisions of the Western Australian law operate differently in respect of the grant of parole to a prisoner serving a sentence of life imprisonment in that State. However, under s 27(1) of the Victorian Transfer Act, the plaintiff, on his transfer to Victoria, became subject to Victorian law. The law of Victoria, and not Western Australia, applied to the disposition of the plaintiff following his transfer to Victoria. In exercising the royal prerogative of mercy in 1994 under s 107(1) of the Sentencing Act, the Governor was not obliged to make a disposition in favour of the plaintiff consistent with Western Australian law.

I should add to the foregoing that, in any event, I doubt whether s 34(1)(ba) and s 34B of the Offenders Probation and Parole Act 1963 of Western Australia had the effect contended for by the plaintiff. In particular, the plaintiff’s submissions were based on the premise that if he had continued to serve his sentence in Western Australia, after a period of ten years, he would have become entitled to parole, and, after a further period of five years, his life sentence would have expired. The matter was not fully debated before me. However, I have substantial reservations as to whether the provisions, of the Western Australian statute, have that effect.

In considering this aspect of the plaintiff’s claim, I have not considered the difficult question as to whether, in any event, this Court has the power to review the exercise by the Governor of Victoria of the royal prerogative of mercy.

It is well settled, by the authorities, that this Court does not, generally, have power to review the exercise by the Governor of the royal prerogative of mercy. While more recent authorities have suggested that some exercises of the royal prerogative powers may be amenable to judicial review, nevertheless it seems settled law that the royal prerogative of mercy is of such a nature that it is not ordinarily amenable to judicial review.[59] However, in light of the conclusions I have reached, I do not need to consider whether those authorities would preclude the plaintiff claiming relief in respect of this aspect of the application in this proceeding.
[59]See for example Horwitz v Connor (1908) 6 CLR 38, 40; R v Transport Regulation Board; Ex parte Banks [1968] VR 95, 100; Von Einem v Griffin (1998) 72 SASR 110, [9] (Prior J), [100] (Lander J); R v Toohey Ex parte Northern Land Council (1981) 151 CLR 170, 186 (Gibbs CJ), 261 (Aickin J); Stewart v Ronalds (2009) 76 NSWLR 99, 111-2 [39]-[43] (Allsop J).

Accordingly, I do not accept the submissions of the plaintiff directed to the effect or construction of the Parole Order. That order did not, in any way, affect the life sentence of imprisonment to which the plaintiff was subject, save to direct his release on parole, for the duration of that life sentence, on the conditions stated in the Order.

The fourth issue: the validity of condition 5 and condition 9 of the Parole Order

The fourth issue, raised by the submissions of the plaintiff, involves the question of the validity of condition 5 and condition 9 contained in the Parole Order.

It is not suggested by the plaintiff that the Governor of Victoria, in exercising the royal prerogative of mercy, did not have the power to impose conditions on the pardon granted to the plaintiff. Clearly, the Governor, in exercising the prerogative, is entitled to impose ‘lawful’ conditions on any pardon he (or she) might grant to an offender.[60]
[60]See Arthur [1979] VR 304, 307-8 (Young CJ).

The plaintiff seeks to impugn condition 9, of the pardon, on the basis that it involves a delegation, to the Parole Board, of part of the exercise of the royal prerogative of mercy. I do not accept that submission for two reasons. First, as a matter of construction, condition 9 does not, of itself, authorise the Parole Board to unilaterally vary the conditions of the pardon. Rather, it provides a mechanism for the conditions of the pardon to be varied ‘with the permission of the Parole Board’. In that way, condition 9 contemplates a situation in which the plaintiff might seek to have a condition or conditions of the Parole Order varied. Secondly, and in any event, insofar as clause 9 does enable the Parole Board to vary (or permit the variation of) a condition or conditions of the Parole Order, it does not, thereby, vest part of the royal prerogative of mercy in the Parole Board. The variation, of a condition or conditions of the Parole Order, does not necessarily involve an exercise by the Parole Board of any aspect of the royal prerogative of mercy. Rather, it constitutes a variation of a condition of the order made by the Governor consequent upon the exercise by him of the royal prerogative.

The plaintiff has also sought to impugn condition 5 of the Parole Order, on the basis that it might permit the community corrections officer, responsible for the plaintiff’s supervision, to give instructions to the plaintiff that are inconsistent with the conditions attached to the Parole Order. That submission, by the plaintiff, ignores the requirement, by condition 5, that any instruction given to the plaintiff must be ‘lawful’. That qualification has the effect that the community corrections officer is not entitled, or authorised, to give instructions to the plaintiff that are contrary to, or inconsistent with, any of the conditions specified on the Parole Order.

For those reasons I do not accept the submissions made by the plaintiff that condition 9 and condition 5 of the Parole Order are invalid.

The fifth issue: whether the conditions of parole, imposed by the Parole Board on 1 July 2014, are valid and effective

The final issue is whether the conditions of parole, imposed by the Parole Board on 1 July 2014, are valid and effective.

Section 107 of the Sentencing Act provides that the Governor may extend mercy to any person under sentence of imprisonment by directing that that person be released on parole under and subject to the Corrections Act 1986. The Parole Order was made by the Governor pursuant to that provision. Section 74(5) of the Corrections Act gives to the Board the power to impose additional terms and conditions, on a parole order, or to vary the terms and conditions to which the parole order is subject. Thus, it is clear that the Parole Board did, in 2014, have the power to impose the further conditions on the parole granted to the plaintiff. By doing so, the Parole Board was not usurping, or displacing, the exercise of mercy by the Governor in favour of the plaintiff. Rather, pursuant to the grant of parole made to the plaintiff in the exercise of the Governor’s mercy, the Board was, as I have explained, empowered by s 74(5) of the Corrections Act to add to or vary the conditions of parole granted to the plaintiff.

I note that the additional terms were imposed on the plaintiff approximately 15 years after he had completed the five year period of supervision specified in condition (i) of the Parole Order. In the absence of evidence that the plaintiff had acted in any way which necessitated the imposition of such further terms on him, it is surprising that the Board has exercised its power under s 74(5) to impose those terms on the plaintiff. However, in saying that, I acknowledge that the imposition of those additional terms is very much a matter for the Board, not this Court.

Conclusion

For the foregoing reasons, it follows that the plaintiff has not succeeded in establishing any of the bases upon which he sought relief in the present proceeding. In particular, contrary to the submission by the plaintiff, I have concluded that he is subject, at law, to a sentence of life imprisonment, pursuant to s 27(1) of the Victorian Transfer Act. The Parole Order, granted by the exercise of the royal prerogative of mercy by the Governor of Victoria in May 1994, was a valid order, pursuant to s 107(1)(b) of the Sentencing Act, in respect of that life sentence. It follows that the plaintiff is, and at all material times since 1994 has been, on parole in respect of the life sentence he is serving. I have also concluded that the Parole Board had power to impose the conditions and directions which it communicated to the plaintiff in 2014. It therefore follows that the plaintiff is not entitled to any relief in this case.

As I have earlier observed, Mr Horan, in his written submissions, raised an issue as to whether a writ of habeas corpus would be an available remedy in the present case, in circumstances in which the plaintiff is no longer held in prison. In light of the conclusions that I have reached, it is not necessary for me to consider that issue.[61] As I observed during the hearing of submissions — and as was acknowledged by Mr Horan — if I had contended that the plaintiff is not subject to a sentence of life imprisonment, I would have granted him an appropriate form of relief, whether by way of a declaration or otherwise.
[61]Compare, for example, Ruddock & Ors v Vadarlis & Ors (2001) 110 FCR 491, 509-10 [69]-[71], 511 [77] (Black CJ), 546-7 [207]-[211] (French J); Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, 627 and following (Sheller JA); Antunovic v Dawson & Anor (2010) 30 VR 355, 380 [113] (Bell J); Jones v Cunningham 371 US 236 (1963), 243-4 (Black J).

In reaching the above conclusions, I am mindful that, in this State, a sentence of life imprisonment is ordinarily only imposed for what might be regarded as the most serious instances of the crime of murder. I am not aware of the circumstances of the offence in respect of which the plaintiff was convicted by the Supreme Court of Western Australia in 1982. However, the fact that he has been the subject of parole since 1994 indicates that those circumstances may well not have been such as would have justified the imposition, in Victoria, of a sentence of life imprisonment on him. The plaintiff has now been subject to that sentence for a period of 33 years. That period, in itself, substantially exceeds the usual or ‘median’ sentence of imprisonment imposed on those convicted for murder in this State. I apprehend that the plaintiff’s anomalous situation is the result of an hiatus in the legal mechanisms, which might have otherwise operated in his favour in order to ensure that the sentence of imprisonment, served by him, whether in custody or on parole, did not exceed the sentence of imprisonment which ordinarily would have been imposed on him had he been convicted in the State of Victoria. I make those observations because, it seems to me, serious consideration should be given by the intervener to investigating whether the anomalous position, in which the plaintiff finds himself, might now be appropriately alleviated.

However, for the reasons I have discussed, the plaintiff is not entitled to the relief sought by him, or indeed to any relief, whether by way of declaration or otherwise. It follows that the proceeding should be dismissed.

[2015] VSC 106

30 March 2015