Eastman v Director of Public Prosecutions Act & Ors
[2003] HCATrans 596
IN THE HIGH COURT OF AUSTRALIA
Registry No C11 of 2002
B e t w e e n -
DAVID HAROLD EASTMAN
Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
IAN PIKE
Second Respondent
ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Third Respondent
THE HONOURABLE JEFFREY MILES
Fourth Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 5 MARCH 2003, AT 10.15 AM
Copyright in the High Court of Australia
__________________
MR D. GRACE, QC: If the Court pleases, I appear with MS M.E. MARICH, for the appellant. (instructed by the appellant)
MR D.A. BUCHANAN, SC: If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, SC, for the first respondent. (instructed by the Director of Public Prosecutions (ACT))
MR P.A. JOHNSON, SC: If the Court pleases, I appear for the third respondents with MR D.J.C. MOSSOP. (instructed by ACT Government Solicitor)
MR J.D. HARRIS, SC: May it please the Court, I appear for the second and fourth respondents. (instructed by Kevin Holmes and the Registrar, ACT Supreme Court)
Whilst I am here announcing my appearance, could I indicate that the second and fourth respondents submit to any order which the Court proposes, save as to costs, and I would not wish to be heard any further in the proceedings. I had proposed to seek leave for the amendment of the proceedings by noting that the fourth respondent, currently named as the Honourable Chief Justice of the Supreme Court of the Australian Capital Territory, has retired and that it is appropriate that the proceedings be amended to describe the fourth respondent as the Honourable Jeffrey Miles.
GLEESON CJ: Is that agreed by counsel?
MR BUCHANAN: It is.
GLEESON CJ: We will make that amendment.
MR HARRIS: May it please the Court. I seek leave to withdraw.
GLEESON CJ: Yes, Mr Harris, certainly. Yes, Mr Grace.
MR GRACE: Your Honours, there may be some preliminary matters that my opponents might wish to mention prior to myself commencing argument. I would like them to do so if they so wish.
MR BUCHANAN: May it please the Court, the first respondent moves on the notice of motion filed on 3 March 2003, the first part of which is no longer necessary in view of the order made amending the title of the proceedings, but the second part of which seeks essentially an extension of time within which to file a notice of contention.
GLEESON CJ: Do you oppose, Mr Grace?
MR GRACE: No, I have no problem with that.
GLEESON CJ: Yes, you have that ‑ ‑ ‑
MR BUCHANAN: Thank you. May it please the Court.
GLEESON CJ: Yes, Mr Grace.
MR GRACE: If the Court pleases. Your Honours, I propose to deal first with the grant of appeal involving the interpretation of section 475 of the Crimes Act 1900 of the Australian Capital Territory. The first observation to be made, in my submission, is that the drafting style used has survived with little amendment for over 100 years. The style does not admit of precision and an initial examination of the section itself will reveal that point and if I could ask ‑ ‑ ‑
GLEESON CJ: Just excuse me. What was the version of the Crimes Act with which we are concerned? Amended until when?
MR GRACE: Until the direction was given in August 2001.
GLEESON CJ: So the republication of 7 January is not relevant to us?
MR GRACE: No.
GLEESON CJ: January 2002, yes.
GUMMOW J: I have a reprint of 30 November 1996.
MR GRACE: That would still contain the provision as it stood in August 2001. Now, if I could ask your Honours to turn to the particular provision which is contained within subsection (1). It provides as follows:
Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the ‑ ‑ ‑
GLEESON CJ: Just a moment. We are trying to locate the section.
MR GRACE: It may be of assistance, your Honours, if I could refer you to the annexure to the appellant’s submissions, the relevant statutory provisions, which, at page 6, sets out section 475 as it stood at August 2001. It provides as follows:
Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.
If I could just focus initially on the last three words, “the matter suggested”, it is submitted that that is an example of the imprecision in drafting and consistent with the observation I made that the drafting style is somewhat lacking in particularity. “Matter suggested”, it is submitted, must relate both to the suggested reason there is a doubt or the suggested reason there is a question.
GLEESON CJ: Mr Grace, this legislation was copied from New South Wales, was it not?
MR GRACE: Yes, it was.
GLEESON CJ: What was the position as to appeals in criminal matters in New South Wales at the time this legislation was introduced?
MR GRACE: The Criminal Appeal Act of New South Wales had not been passed. There was no provision for criminal appeals in New South Wales at the time this Act was adopted for the Australian Capital Territory.
KIRBY J: When was the Crimes Act 1900 incorporated into the law in the Australian Capital Territory? Originally it was the Crimes Act New South Wales as applied to the ACT and then they had some statute renumbering and renaming law and they made it their own, I think.
MR GRACE: Yes. It was incorporated by an Act of the Commonwealth Parliament, the Seat of Government Acceptance Act. I believe that was in 1906.
GLEESON CJ: 1909 was the Seat of Government Acceptance Act.
MR GRACE: Yes. In paragraph 5.12 of the appellant’s submissions your Honours will see reference to that being made. The section was adopted in the ACT by section 6 of the Seat of Government Acceptance Act 1909 (Cth) and it did survive from 1909 until 27 September 2001.
GLEESON CJ: So by force of section 6 of this Act of 1909, section 475 of the Crimes Act New South Wales was adopted as part of the law of the Australian Capital Territory?
MR GRACE: All the Crimes Act of New South Wales was adopted for the ACT.
KIRBY J: Presumably, it applied in what became the Capital Territory when it was part of New South Wales, so there was no real hiatus.
MR GRACE: Yes, that is correct.
KIRBY J: But its legal status changed, the authority for it became the Federal Parliament, making it by force of federal statute part of the law of the Federal Capital Territory.
MR GRACE: That is correct, your Honour. The precursor to the original enactment was the first report of Sir Alfred Stephen into the consolidation of the criminal law in New South Wales. The first respondent has provided a copy of that report which is behind tab B in the first respondent’s further materials and I will ask your Honours to look at that at the present time. At page 11 of Sir Alfred Stephen’s report, at the bottom of the page he and the other members of the committee, the commissioners, said this, last paragraph on page 11:
It not unfrequently happens after a prisoner’s conviction, generally on his representation, but sometimes at the instance of strangers, that doubts or questions are raised as to some part of the evidence, or some matter not in evidence, tending to impeach the verdict.
Now, I want to focus on those words, “tending to impeach the verdict”, because that, in my submission, is a telling point when one comes to interpret the section.
GLEESON CJ: It ties in with the language of the section which is that this is an inquiry after conviction.
MR GRACE: Yes, and the issue at large in this appeal is the meaning of the word “guilt” as it appears in the section and it is our submission ‑ ‑ ‑
GLEESON CJ: Which, as one of the judges in the courts in this case pointed out, is not a theological concept.
MR GRACE: Yes. We would submit that the word “guilt” must mean a finding of guilt as represented by the verdict of the jury. The commissioners go on to say:
Such doubts must in the course of years have presented themselves without suggestion elsewhere, to the mind of every Judge. There is, however, as we all know, not only no Appeal in such cases, but no mode provided by law for investigating the facts represented, or satisfactorily solving any doubts so raised. The absence of such a provision has often been regretted; but there is great difficulty in applying an adequate remedy. We have endeavoured to meet this, to some extent, by an enactment enabling the Governor, or the presiding Judge in any case, to cause witnesses to be examined on oath before some Justice; and thus to obtain materials, under legal sanction, for determining how far the doubt or representation is well founded.
GLEESON CJ: What did he propose was to be done if it was established that the doubt was well founded?
MR GRACE: Sorry, I did not hear that, your Honour.
GLEESON CJ: Where do you go from there? After you conduct an inquiry and find that there is a well-founded doubt about the verdict, under the scheme proposed by Sir Alfred Stephen what do you do next?
MR GRACE: Well, one goes to the legislation as drafted, which is behind the same tab at the page marked 437, although it is not a consecutive numbering, but you will see legislation immediately following that report.Section 392 of the legislation provided as follows, and I will not read the whole section ‑ ‑ ‑
KIRBY J: This was a draft criminal statute, was it, that the Stephen Report annexed?
MR GRACE: Yes.
KIRBY J: So it is clause 392?
MR GRACE: Yes, it is clause 392. Perhaps I will read it:
Whenever after a prisoner’s conviction or sentence any question shall arise as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein it shall be lawful for any Justice by the direction of the Governor or of the Judge before whom such prisoner was tried to summon and examine on oath all persons who may be thought likely to give material information on the matter suggested and to transmit every deposition taken thereupon to the Governor or Judge for his information.
That was the end of the matter in terms of that particular proposal.
GLEESON CJ: Yes, I am just inquiring what are you heading towards - an exercise of the prerogative of mercy?
MR GRACE: Yes. It must inevitably have led to that conclusion. But the matter is made clear when the actual legislation was passed in 1883. Could I take your Honours to that legislation, which is behind tab C. It is at page 76 and it is section 383. Do your Honours have that?
GLEESON CJ: Yes.
MR GRACE: That provides as follows:
Whenever after the conviction of a prisoner any doubt or question arises as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein it shall be lawful for any Justice by direction of the Governor on the petition of the prisoner or some person on his behalf representing such doubt or question - or by direction of a Judge of the Supreme Court of his own motion - to summon and examine on oath all persons likely to give material information on the matter suggested. Provided that where on such inquiry the character of any person who was a witness on the trial is affected thereby the Justice shall allow such person to be present and to examine any witness produced before such Justice. And such Justice shall transmit every deposition taken by him under this section as soon as shall be practicable to the Governor if the inquiry was directed by him or to the Judge directing the inquiry and the matter shall thereafter be disposed of as to the Governor on the report of such Judge or otherwise shall appear to be just.
GLEESON CJ: Now, what power did the Governor have except to exercise the prerogative of mercy? Could the Governor quash the conviction?
MR GRACE: One would imagine yes, if that is within the exercise of prerogative.
KIRBY J: But how can the prerogative extend so far? The Governor is a functionary. The Governor would recommend to the Queen or the King that the prerogative of mercy be exercised, but that would be as far as it would go.
McHUGH J: There could be a free pardon.
MR GRACE: Yes.
GLEESON CJ: This is the old problem with section 475, Mr Grace. It has been around for years. I am not suggesting it is adverse to your case but it is the problem of what stands at the end of the line in a proceeding like this. There are a lot of people who have been convicted of crimes and later found to be the victims of a miscarriage of justice who are not tickled pink about being dealt with under the rubric of the prerogative of mercy.
MR GRACE: Yes. That exactly happened with the Chamberlain Case, your Honours may recall. The Northern Territory legislature in the end passed legislation which was specifically directed to the Chamberlains which permitted the Court of Criminal Appeal, upon the matter being referred by the administrator to the court, to quash the conviction and enter a verdict of acquittal.
KIRBY J: It permitted or required?
MR GRACE: I believe permitted. I refer your Honours to the decision of the Court of Criminal Appeal (1988) 93 FLR 239.
KIRBY J: This is pursuant to that statute, is it?
MR GRACE: Yes.
KIRBY J: We are taking you out of your historical course. Presumably you will come to that in due course.
MR GRACE: Yes, but that is, of course, an option for the government of the day.
GLEESON CJ: It was not an option in 1883.
MR GRACE: It is not an option contained within any legislation.
GLEESON CJ: There was no such thing as a criminal appeal in 1883.
MR GRACE: No, there was not.
GLEESON CJ: Or in 1900.
MR GRACE: No.
GLEESON CJ: Or in 1909.
MR GRACE: No. It is interesting to note that notwithstanding the passing of the Criminal Appeal Act in New South Wales in 1912 and passing of similar Acts in other States of Australia subsequently that section 475 survived. The reason for that might be seen in the intent on the part of the legislature that there are cases that survive appeal in terms of the conviction surviving and at a much later date issues arise as to guilt which section 475 is aimed to cure.
KIRBY J: Have your researches shown what actually happens? The prisoner is out in the prison, the Executive Council meets – in the old days at Government House – an instrument would be placed before the Governor and the Governor would initial it. Now, what does that say that gets the prisoner out of – and that exercises the prerogative of mercy?
MR GRACE: I am unable to say what the procedures are, but one needs to go back to the case of Alister and Dunn.
KIRBY J: It would go back for ancient times, presumably.
MR GRACE: Yes, but in more recent times ‑ ‑ ‑
GUMMOW J: There is some provision in the self‑government legislation in the ACT about the exercise of the prerogative, is there not?
MR GRACE: There is provision ‑ ‑ ‑
GUMMOW J: …..because that is immediately what is relevant.
MR GRACE: Yes, and the prerogatives are available.
GUMMOW J: Well, in the ACT they do not have any vice‑regal representative, so it is all very curious.
MR GRACE: Yes.
GUMMOW J: The section talks about this entity called the “Executive”.
MR GRACE: Yes, it does.
GUMMOW J: Well, we have to know how that works too before we construe the section.
MR GRACE: Yes.
HAYNE J: The point which emerges from this debate is that what is occurring is something that is, at least for some purposes, perhaps for all, a process that is outside a lis. It is a process of the Executive informing itself about matters pertaining to executive functions and powers rather than a further judicial process in disposition of a matter joined when the accused pleads guilty.
MR GRACE: Yes, I have no quarrel with that proposition, your Honour.
KIRBY J: But here is a statute and a statute has been enlivened and the question is whether it attaches. I mean, at this stage we have not come to the point of the prerogative mercy, however it is described. This is simply the engagement of the statute.
MR GRACE: Yes.
KIRBY J: So we are at the stage before that. There is no question that the statute exists and that it gives certain powers. The question is whether it attaches to these circumstances.
MR GRACE: Yes, quite so, your Honour. Could I take your Honours next to tab M in the same folder of materials, which is the report of his Honour Justice Wood in the New South Wales Supreme Court into the inquiry held under section 475 of the Crimes Act of New South Wales into the convictions of Anderson, Alister and Dunn. If I could take your Honours to page 63 of that particular report, extracts only having been reproduced, and at point 5 on page 63 - your Honours will see the numbers at the bottom - his Honour Justice Wood said this:
I respectfully accept as correct the conclusion of Slattery CJ at CL in the Price inquiry, so far as that concerns the task of the Justice when inquiring into questions or doubts concerning guilt. It is my view that I should consider the evidence at and the conduct of the trial, in the light of the further evidence and submissions received in the Inquiry, in order to determine whether the questions or doubts as to guilt have been resolved or remain. In this regard, I take the view that guilt has the meaning given to it in the trial process, that is, guilt established beyond reasonable doubt. So far as any question or doubt may concern a conflict of evidence or the reliability of a witness, or may depend on fresh evidence concerning aspects of the case proven by the Crown, it seems to me that I must weigh those matters and express my own opinion in the report. So far as the question or doubt may concern a possible miscarriage of justice or involves the possibility that the convictions were improperly obtained, due to some error in the trial process, it seems to me that I must explore whether or not there was a mishap, and report my conclusion both as to its occurrence and as to its significance in relation to the guilt found by the convictions.
Now, those comments of course are ‑ ‑ ‑
GUMMOW J: Was there any fitness to plead point there?
MR GRACE: No, there was not.
GUMMOW J: His Honour was not directing himself to this question.
MR GRACE: Well, his Honour’s comments bear some similarity to what your Honour Justice Hayne had to say about a miscarriage of justice consequent upon unfitness to plead in the previous decision of this Court in Eastman in 2000.
HAYNE J: That was a dissenting view.
MR GRACE: Well, perhaps not on that issue, your Honour. I will come to that shortly if I may. But if I could just continue on with what Justice Wood had to say:
Questions arose in the Inquiry whether it was proper for consideration to be given to whether or not further evidence now available might have brought about a different jury verdict, and whether or not the jury verdict might have been different if, absent any mishap shown to have occurred, the trial might have been conducted differently. In order to discharge my function I believe it necessary to consider and report in some detail on the new evidence and on the facts concerning any suggested error or mishap in the trial process ‑
and I want to focus on the words “mishap in the trial process” ‑
and on its practical implications, so that the Executive may have the material needed to dispose of the matter as shall appear to it to be just.
That the task of the Justice is to inquire to this additional extent is indicated by the procedures followed in R v Sutton (Court of Criminal Appeal, 7th December 1978). There Street CJ enunciated a question that had arisen as to the guilt of the appellant in the following words:
“A question has arisen as to the guilt of the appellant in that it has been suggested that the evidence of witnesses named by him in an undated document, which will be marked for identification 1, and in a letter dated 18th December 1977, signed by the appellant was properly capable, if adduced, of being accepted by the jury and would have been likely to produce a different verdict if the jury believed it.”
Later in the report, at page 67 at line 3 his Honour said this:
In these respects I apprehend that my function is somewhat different from the Court of Criminal Appeal. For example, if I were to conclude at the end of the Inquiry that at the trial there was a miscarriage of justice in some respect, yet the jury would certainly have returned the same verdict if the matter complained of had not arisen –
and McDonald and Maric is quoted –
I do not believe that I could discharge my function by a simple conclusion that there was no doubt or question. Unlike the Court of Criminal Appeal, I do not believe that I could myself have resort to a process akin to an application of the proviso to Section 6(1) of the Criminal Appeal Act 1912. In such a case I consider that I would have to report in relation to the questions or doubts concerning the matter or matters involving a miscarriage of justice, and for the benefit of the Executive express my opinion as to their significance for the finding of guilt.
GLEESON CJ: Let it be supposed that a person is convicted after a trial before a jury, all avenues of criminal appeal are exhausted or, as matters stood in 1883 or 1900, there were no avenues for a criminal appeal, and years later it was found that there had been interference with the jury so that the process of the jury was corrupted. How would this provision operate?
MR GRACE: It would operate in the same way that is contended for by the appellant in this appeal.
GLEESON CJ: The argument against you has to proceed on the assumption, does it not, that in a case like that the question is not necessarily a question involving the guilt of the prisoner?
MR GRACE: Well, it may have had an impact upon the verdict of the jury. One does not know in the example postulated. In Eastman’s situation, the appellant’s situation, we would submit it is not a question as to whether the verdict of the jury would have been different if he was unfit to plead. There would have been no verdict of the jury. If he was unfit to plead, the trial was a nullity, there was no trial at all. Again, going back to what your Honour Justice Hayne had to say in Eastman (No 1), that gives rise to a miscarriage of justice under the standard form appeal provisions throughout Australia.
In the way that Justice Wood characterised the test that he had to adopt and apply in the inquiry he conducted, he looked at it from the point of view as to how the doubt or question that is raised would impact upon the finding of guilty, or the guilty verdict, by the jury. But what the appellant contends for is that we do not even need to get to that stage because if there is a doubt or question as to the appellant’s fitness to plead, that doubt or question by itself gives rise to a miscarriage of justice.
McHUGH J: Your argument might be assisted if you dropped any reference to “doubt” and simply concentrated on the words, “any question arises as to his guilt”. When you talk about doubt or question, it is easy for the mind to be directed towards the fact of guilt, but when you talk about “a question arises as to his or her guilt”, it may be that expression is wide enough to cover many defects in the trial process itself.
GLEESON CJ: Especially if ‑ and I would understand this is all that is necessary for your argument – the word “guilt” is understood as meaning “the guilt established by the conviction”.
MR GRACE: Yes. That, in simple form, is our argument.
GUMMOW J: What was the opposing successful proposition?
MR GRACE: That “guilt” means something that has to do with the actus reus, so if the actus reus is proved, then there is no issue.
McHUGH J: It would have to include mens rea, would it not?
MR GRACE: One would have thought so.
GLEESON CJ: But the argument against you would be exactly the same if it appeared or there was a suggestion that a juror had been corrupted.
MR GRACE: Yes, it would, because in both situations the first respondent would say those questions have nothing to do with the verdict; they have to do with the process of the trial.
KIRBY J: Except that one could see an argument to distinguish them and say the issue of mental capacity or fitness to be tried has nothing to do with whether you are guilty or innocent of the crime, whereas if you corrupt the jury then you may not have had that question of your guilt or innocence or non‑guilt established in a lawful way, a safe way.
MR GRACE: Yes. I was not understanding the question to solely relate to an accused corrupting the jury. It might be a police officer, for instance.
KIRBY J: No.
GLEESON CJ: One of the points that your client unsuccessfully raised early on in these proceedings was that the person who presided over this trial was not a judge.
MR GRACE: Yes.
GLEESON CJ: In the days before there was any right of criminal appeal, a point like that could be raised under section 475, could it not?
MR GRACE: Or by way, perhaps, of a writ of error, because that would certainly be part of the record that could be challenged. But, yes, to answer your Honour’s question, the answer is yes.
McHUGH J: In the courts below no reliance was placed on mitigating circumstances, which is understandable, but no reliance was also placed on the words “any portion of the evidence”, but if your client was not fit to plead then one would have thought that a question may have arisen as to that portion of the evidence at the trial that he gave.
MR GRACE: Yes, that is quite so, your Honour.
HAYNE J: Just as much as if there were some insufficiency of capacity to give instructions, the question of evidence given by other witnesses may – it may not – be affected by whether sufficient instructions were given for those parts of the trial where Mr Eastman had counsel appearing.
MR GRACE: Yes, exactly, your Honour, because unfitness will necessarily affect the instructions, will necessarily affect the ability to cross‑examine and to cross‑examine in one’s best interests, the ability to give evidence, the ability to make forensic decisions, to call witnesses and to make submissions, and a finding of guilt will necessarily be the product of all of those aspects of the unfitness.
GLEESON CJ: The argument against you seems to assume that the reference to conviction and guilt is not a reference to the record, it is a reference to the state of Mr Eastman’s soul.
MR GRACE: Yes, and hence Justice Madgwick made the comment that:
The criminal law is not concerned with the viewpoint of God.
And that seems, in the essence, to be the argument against me.
McHUGH J: Just take the case where counsel was wrongly prevented from cross‑examining a key witness. I would have thought that arguably that raised a question as to “portion of the evidence” within the meaning of the section.
MR GRACE: Yes, but one would have thought that that normally would form the basis of a ground of appeal to a Court of Criminal Appeal.
McHUGH J: But even if you accept the respondent’s theory as to what is meant by guilt, if you concentrate on “portion of the evidence” there might be a relevant power for the purposes of 475.
MR GRACE: Yes, there may well be, your Honour. Of course, whether to order an inquiry in those circumstances is peculiarly within the discretion of the justice or the Executive.
GLEESON CJ: I am still concerned with whether it may not have some bearing upon the meaning of section 475 to understand what is the end result of this process. I am not talking about your case specifically but the process contemplated by 475. What can ‑ ‑ ‑
GUMMOW J: In relation to that, someone had better tell us at some stage today, what is the present operation of section 72 of the Self‑Government Act, which talks about the royal prerogative. It seems to say it is the Governor‑General who exercises it with the Commonwealth Minister’s advice, but it may have changed, I do not know.
MR GRACE: I understand it is the Governor‑General.
GLEESON CJ: But this section 475 procedure is aimed at what end?
MR GRACE: Well, from the appellant’s point of view, it is aimed at the end of proving at an inquiry that there was an issue as to his fitness to plead so as to impress upon the Executive that the verdict of guilty was achieved in a trial which was a nullity.
GLEESON CJ: But can the Executive set aside the conviction?
MR GRACE: No, it cannot.
McHUGH J: There was a long history in New South Wales of the Governor and Lieutenant-Governor, from the earliest times in the colony, remitting the whole or portions of sentences of transportation and also free pardons were given. There is an Imperial Act of 5 George IV, which deals with this question of remissions in the colonies of New South Wales. So there had been a long history in New South Wales which may well have existed even back in 1883 of the Executive remitting portions of sentences as well as giving free pardons. The conviction would stand, of course, unless there was a free pardon. And there were conditional pardons. If I remember rightly, this Act abolished attainder in New South Wales. Most felonies carried the death sentence until the middle of the 19th century and the ordinary sentence was the sentence of death, even for larceny.
MR GRACE: The words “to the Executive as is just” must encompass the full width of the Royal prerogatives.
GUMMOW J: We have to know what this term “Executive” means, do we not? Sooner or later someone is going to have to look at the Self‑Government Act Part IV.
MR GRACE: The majority in the court below accepted that the Chief Justice was, and was entitled to be, satisfied that there is a doubt or question as to whether Eastman should have been convicted at his trial, as there was a question or doubt as to his fitness to plead during the trial. That can be found at pages 325 to 326. The only issue that the court below had to consider was whether there was power for the Chief Justice to order the inquiry in the circumstances at large.
So there was no issue between all the parties. There was no issue with the court that there was a concern as to his fitness to plead during the trial. So the question is how can there be a remedy for the appellant in these circumstances absent a 475 inquiry, given that this Court in a previous decision has held that the issue cannot be litigated in this Court?
KIRBY J: The alternative question is how section 475 is apt to provide a remedy for the kind of default that is alleged on your part. The prerogative of mercy is a pardon of the crime and it is difficult at the moment, at least for me, to see how section 475 leads to a solution that is apt to provide a new trial that would allow the issue of the fitness to plead to be canvassed and determined and, if 475 does not lead to that remedy, how it has anything to do with the case.
MR GRACE: It may well be that the Executive will promulgate legislation to cover the situation.
GLEESON CJ: This has always been the problem with section 475 and it is my understanding that in some jurisdictions the problem has been remedied by statute that allows a remitter back to a Court of Criminal Appeal after some kind of conclusion of an inquiry like this.
MR GRACE: Yes. What is common in other jurisdictions other than New South Wales and the ACT is for a process called a petition of mercy to be instituted whereby the petitioner petitions the Governor and there is provisions in the various criminal appeal statutes that allow remitter in those circumstances.
GLEESON CJ: But it is incongruous, is it not, to deal under the rubric of mercy with the common situation of an allegation of a miscarriage of Justice?
MR GRACE: Yes.
GLEESON CJ: I do not mean that it is common that there are miscarriages of justice; I mean that the common form of an alleged miscarriage of justice is one that is accompanied by an assertion of innocence, or at least wrongful conviction, and to have to deal with that by an exercise of the prerogative of mercy is and always has been unsatisfactory.
MR GRACE: Yes, but nevertheless, that is the procedure that is adopted.
HAYNE J: But it is a procedure that stems from a recognition of the fact that we have left the court system. We have left the judicial system and we are concerned with the Executive informing itself. Now, what the Executive can do, what the Executive does do may – it may not – have some immediate effect within the judicial process. Absent statutory authority, it is not evident how it could. But the premise for 475 is that we are in executive territory not judicial territory. What the Executive does about it, it may have limited powers, it may have ample powers.
KIRBY J: Or it might secure legislation, as you say happened in the Northern Territory.
MR GRACE: Yes.
GLEESON CJ: Does the prisoner referred to in section 475 have to still be alive? In other words, could you have an inquiry under section 475 into the conviction of someone who is dead?
MR GRACE: I think you could, your Honour.
GUMMOW J: Well, you have to have a petition by some person on behalf of the prisoner.
MR GRACE: Yes, or the Executive of its own volition.
GUMMOW J: I do not know about on behalf of deceased estate.
HAYNE J: Executor of Craig and Bentley perhaps.
MR GRACE: It might have relevance to the question of a will or similar.
GLEESON CJ: I suppose there is no reason you could not have a Royal Commission into the conviction of a deceased person.
MR GRACE: No. The Royal Commission, of course, has no power to cause anything. It can only make recommendations to the Executive, exactly the same position as a 475 inquiry.
KIRBY J: An argument against you is that the legislation does not normally in a matter like this prove itself futile. If it does not lead anywhere that is apt to solving the problem, that would be a reason to construe the legislation in a way that it does not attach to the issue.
MR GRACE: Yes, I understand that, but one then has to examine, your Honour, as to what it could ever attach to. Take the Alister and Dunn inquiry. There was a recommendation by Justice Wood that there was a doubt as to ‑ ‑ ‑
KIRBY J: But that would not possibly be an appropriate solution or a feasible solution of an inquiry, magistrate or judge under this legislation, because the only solution that is logical for the problem that is presented is a quashing of the conviction and a determination of the fitness to plead or perhaps just a determination of the issue of the fitness to plead. So that a question can then arise as to whether the conviction can stand.
MR GRACE: Yes.
KIRBY J: And that is not provided for under the present law, because in the path of that stands the conviction which has been the subject of appeals and has been confirmed.
MR GRACE: That is so, your Honour.
KIRBY J: So the best you can put it is 475 is in general language, it can be applied to this case, whatever the history of it may be, and that in the Northern Territory a solution was found. It is addressed to the Executive. The Executive can propose to the legislature a legislative solution and if that is what they choose to do that is it, but meanwhile get on with the advice to the Executive.
MR GRACE: Yes, and the key words, we would submit, are the words “as is just”.
GLEESON CJ: The conviction has never been confirmed, has it? Courts of Criminal Appeal do not make orders confirming convictions.
MR GRACE: No, they do not.
GLEESON CJ: That is an order made in a Court of Sessions appeal by a judge dealing with a full appeal from a magistrate.
MR GRACE: Yes, where there is a hearing de novo but, no, Courts of Criminal Appeal do not confirm convictions.
KIRBY J: Yes, but the effect of their dismissal is to confirm the conviction.
MR GRACE: Yes, that is the effect.
GUMMOW J: Now, how did all this procedure start off? It started off by an application made to the Chief Justice, did it?
MR GRACE: Yes.
GUMMOW J: And he was exercising some non‑judicial power, was he?
MR GRACE: Yes, he was exercising an administrative function.
GUMMOW J: Conferred by 475?
MR GRACE: Yes.
KIRBY J: He did so in terms saying he was of the view that there was a doubt. His letter is in the appeal book at page 307.
MR GRACE: Yes, correct, your Honour.
KIRBY J:
I am of the view that a question or doubt arises as to his guilt.
Presumably he reached that view having regard to the expressions of opinion in this Court.
MR GRACE: Yes.
GUMMOW J: And upon that, the Territory’s AD(JR) Act operated, did it?
MR GRACE: Yes, it did.
GUMMOW J: It was that that brought the whole dispute within the range of judicial power, namely the application under the AD(JR) Act.
MR GRACE: Yes, it did, but that brought it before the ACT Supreme Court and then to the Full Federal Court. There was a hearing convened by the Chief Justice to hear the arguments of the parties in relation to whether he ought to order or direct an inquiry.
GUMMOW J: But that is an administrative procedure of some sort.
MR GRACE: Yes, and that occurred in July 2001. Could I take your Honours to the judgment of his Honour Justice Madgwick in the court below, the report of the case in 192 ALR 353 and particularly at paragraph [67], and it also appears in the appeal book at page 331. At paragraph [67] his Honour said this:
The question of fitness to plead not only concerns fairness of a trial: it is a unique matter and actually fundamental to the structure of the criminal law’s processes for ascertaining guilt. As Hayne J explained it in Eastman (at [293]-[294]):
A criminal trial is an accusatorial and adversarial process. It “is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence”. As Barwick CJ said:
“It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross‑examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.”
Ordinarily, then, it will be for the prosecution to prove its case and for the accused to choose the ground or grounds upon which to meet the accusation.
But the unstated premise from which these descriptions of the criminal trial process proceed is that the accused is fit to plead and fit to stand trial. There can be no trial at all unless the accused is fit both to plead and to stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed, it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary.
Then his Honour went on to refer to similar remarks by her Honour Justice Gaudron.
Now, as I have mentioned earlier, consistent with those comments by your Honour Justice Hayne is the issue of what occurs in the trial process in terms of giving instructions, the calling of evidence, the giving of evidence, making forensic decisions, making submissions. All of that is affected by fitness to plead.
It was not until two months into the trial that the issue first arose, and when I say the issue, the issue of fitness did not become an issue as such. It arose at a time when the appellant had sacked his legal practitioners and in the cross‑examination of one of the police officers in relation to the issue of surveillance it was attacking that police officer’s credit. The upshot of the cross‑examination was to elicit evidence that the police officer had good reason to regard the appellant with suspicion and that good reason, when pressed, was as a result of forensic psychiatric reports that had been provided by a Dr Milton to the prosecution prior to the institution of the charge against Mr Eastman.
The appellant had not been provided with that material prior to that time. He disputed the contents of the material but at that stage was representing himself and could not, if he was unfit to plead, have any proper appreciation of the impact of that material upon the trial itself. That is an example in the very instance of the appellant’s trial of how unfitness to plead might impact upon the conduct of the trial itself which in turn may lead, and did lead, the appellant submits, to the finding of guilt of the jury.
We submit that “guilt” in section 475 cannot be determined upon the evidence given at a trial where the process of the trial has been fundamentally flawed by the product of the unfitness to plead. In section 475(1) the word “guilt” follows after the reference to the conviction of a prisoner, and we would submit that this merely reflects the stages ‑ ‑ ‑
GUMMOW J: You keep focusing on this word “guilt” but, as Justice McHugh pointed out to you, there is a whole phrase there:
doubt or question arises as to his or her guilt –
It helps you.
MR GRACE: Yes, it does.
GUMMOW J: And you keep narrowing it.
MR GRACE: We would submit there is no magic in the use of the word “guilt” following the word “conviction”, as the first respondent would seem to indicate by his submissions, and that “guilt”, following up as it does after the word “conviction”, merely reflects the steps in the criminal trial process. That has been made clear by such cases as Maxwell, Cobiac v Liddy and Griffiths.
The other consideration that the appellant places emphasis upon is the purpose of section 475(1) and we would submit that that purpose is to correct and mediate a mischief that has occurred within the criminal justice system. In the case of Varley v Attorney‑General (NSW) (1987) 8 NSWLR 30, both your Honour Justice Kirby and Justice Hope commented upon the provision and its purpose in history. If I could take your Honours to page 31 in the report where your Honour Justice Kirby – and, of course, you were then President of the Court of Appeal of New South Wales – discussed the novelty of the statutory inquiry under section 475 commencing at the bottom of page 32. After setting out the section your Honour referred to the decision of the High Court in White v The King (1906) 4 CLR 152, and if I could just diverge for a moment to refer your Honours to White v The King and particularly to page 165 in the judgment of Justice O’Connor, and at point 5 on page 165 ‑ ‑ ‑
GUMMOW J: Now, this is in the era of the Crown case reserved.
MR GRACE: Yes, it was. At page 165 point 5, his Honour Justice O’Connor said this:
Before that law was enacted –
meaning the Criminal Law Amendment Act of 1883 –
it was impossible, except by way of special case, to have a public inquiry upon oath into the circumstances attending a conviction. It was the custom, as is well known, for the Crown to obtain information by means of ministerial inquiries. But these were not on oath, and were not public. The object of the new provision was to enable the case to be re-opened where no point had been reserved at the trial, but some facts had come to the notice of the Government indicating the prisoner might have been improperly convicted, and also to enable the Crown where the prisoner’s sentence had been served, and he appeared to have been unjustly convicted, to give him the opportunity of having his character cleared by a public proceeding. Those, undoubtedly, were the objects of the law, and it would be restricting it within limits which would fall short of the mischief to be remedied, if we were to hold that the Act could only be taken advantage of by a prisoner actually serving a sentence in gaol, or who had before the expiration of his sentence been released under the provisions of the Crimes Act relating to first offenders. In my opinion, it applies to every case of a conviction of a prisoner who is desirous of having an inquiry of the kind instituted.
Then his Honour goes on to say:
Sub-sec 4 of sec 475 provides that the evidence taken in such an inquiry shall be forwarded by the Justice before whom the inquiry was held to the Governor, or to the Judge who directed the inquiry, to be disposed of “as to the Governor on the report of such Judge, or otherwise, shall appear to be just.” The prisoner is thereby enabled to get a finding of the magistrate in his favour, and upon that to induce the Crown to exercise its right of pardon. It seems to me that the attempt to initiate such an inquiry comes within the principle of all the cases, and that an attempt to pervert the course of law and justice was committed when the prisoner endeavoured, by producing false evidence to the Chief Justice, to bring about that inquiry.
So Justice O’Connor dealt with the mischief issue in 1906 and in Varley in 1987, that was also the subject of strong comment by both your Honour Justice Kirby and Justice Hope.
GLEESON CJ: It would assist your argument if it appeared that historically pardon was used to cover not only cases where what is ordinarily regarded as mercy is for one reason or another appropriate, such as mitigating circumstances, but also cases of irregularity in conviction.
MR GRACE: Yes, we would submit it is as wide as possible to cover any miscarriage of justice.
GLEESON CJ: Presumably, in the days before there was any right of criminal appeal, the process of pardon was the only process by which you could remedy what Justice O’Connor calls an improper conviction.
MR GRACE: Yes, there was certainly no process by which ‑ ‑ ‑
McHUGH J: I do not think his Honour is accurate in that respect. First of all, a writ of error would lie and a writ of error usually lay only in respect of errors on the face of the record. But, as Mr D.M. Gordon pointed out in an article in 1926 in the Law Quarterly Review, you could supplement the record by errors in fact and that would enable you to bring before the court issues that had not been at the trial such as jury bias and there are cases on that. So you could supplement the record, get the conviction quashed and then the Court of King’s Bench, or its equivalent in the Supreme Court, could have issued an venire de novo for a new trial. So it is not accurate to say – and I think it is section 427, is it not, of that 1883 Act that provided for writ of error?
MR GRACE: Yes, I think there was a problem, however, your Honour, in relation to the distinction between felonies and misdemeanours. The question was whether ‑ ‑ ‑
McHUGH J: You could not order a new trial for felony, but ordinarily venire de novo was another order altogether, because it treated the proceeding as a nullity and then you could have a rehearing. It is a different thing from ordering a new trial.
MR GRACE: Yes.
McHUGH J: I mean, Bertrand’s Case decided that you could not have a new trial for felony.
MR GRACE: Yes. Was that the decision of the Privy Council on appeal from the Supreme Court of New South Wales?
McHUGH J: Yes.
MR GRACE: Yes.
GLEESON CJ: But was pardon only available in the case of mercy?
MR GRACE: Or remission of sentence perhaps. That is something that would be open under a prerogative.
GLEESON CJ: The very word “pardon”, according to its ordinary meaning, seems to assume guilt.
MR GRACE: Yes, it does.
McHUGH J: Do you know when the writ of error was abolished in the ACT?
GUMMOW J: It was abolished by the Criminal Appeal Act in New South Wales.
McHUGH J: Yes, it was.
GUMMOW J: I am not sure about the ACT. It may still have it.
MR GRACE: If I am not mistaken, it was abolished in 1912.
McHUGH J: In the ACT, was it?
MR GRACE: Yes, but I will check on that.
McHUGH J: Probably at the same time that the New South Wales Criminal Appeal Act was instituted, because it abolished the writ of error.
MR GRACE: At page 37 in Varley your Honour Justice Kirby dealt with the issue of construction ‑ ‑ ‑
KIRBY J: The point that divided Justice Hope and myself – Justice Hope and Justice Samuels were in the majority – was limited, I think, to whether or not a person alleging or seeking an inquiry under section 475 could begin by summons, is that correct?
MR GRACE: Yes.
KIRBY J: And the majority held not and I held yes, but ‑ ‑ ‑
MR GRACE: That is correct, but on the construction of the legislation and on the purpose behind it, your Honour and Justice Hope were really not at odds. At page 37F your Honour Justice Kirby referred first of all to the uniqueness of the provision. Your Honour said:
First, there is the consideration that the section is a unique provision. It should, in my view, be given a beneficial construction and one which furthers and does not frustrate the purpose evident in the legislation. This purpose is the safeguarding of the administration of justice and the assurance that, to the extent that our legal procedures permit it, no person shall suffer the stigma of a conviction, still less the burden of continuing deprivation of liberty or the imposition of other sanctions, where a doubt or question has arisen as to his guilt or as to evidence upon which he has been convicted. These are, after all, very serious concerns. The law must put a high store on finality, especially in criminal trials. It must uphold the decisions of the juries and of courts, duly arrived at. But it must also attend sensitively to the correction of errors where they can be demonstrated. Section 475 affords a legislative warrant to the Executive Government and the Court in certain limited circumstances, to require review of a conviction although duly entered. Such a provision should not be given an unduly narrow construction by adopting an approach to the initiation of proceedings which tends to impede their commencement.
And that last comment, of course, related to the point of distinction between your Honour and Justice Hope and Justice Samuels. Then over the page on page 38A your Honour referred to the principle of construction explained by Justice Isaacs, as he then was, in Bull v Attorney-General for New South Wales, where his Honour said:
“. . . this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially.
And then your Honour at paragraph 3 referred to Cooper Brookes.
Then later in the report – and I might add that your Honour at page 40 referred to quite a number of inquiries that had been instituted both in England and in Australia pursuant to various statutory procedures.
KIRBY J: This was before the Irish cases.
MR GRACE: Yes. At page 43 Justice Hope again delved into the history and purpose of the section and at page 45 sets out the second reading speech which described the mischief intended to be remedied by the provisions. There was an example given there of an issue concerning the chastity of the prosecutrix or some of the witnesses, and again reference to Justice O’Connor in White, but at page 46B his Honour says this:
Section 475 is a remedial section, and consequently should be construed beneficially. This well‑known principle does not of course mean that courts can construe a statute so as to achieve a result which they think the legislature should have enacted; it means that they should construe the statute to give the fullest effect to the legislation’s intention to remedy the mischief aimed at which the language of the statute will allow.
The principal mischief to which the provision was directed seems clear enough. Both in 1883 and in 1900, there was no way in which any doubt or question concerning a conviction or a resulting sentence could be effectively investigated. The Crown could arrange for an inquiry to be held, but there was no statutory basis for doing so, there could be no public inquiry, evidence could not be given on oath, and persons could not be compelled to provide information. No doubt since it was established the appellate system has been able to handle many of these problems, but subject to the operation of an appellate system the Crown might be faced with a possible injustice to a convicted person which it could not deal with satisfactorily, and there would be no effective means available to the convicted person to seek to have his name cleared.
KIRBY J: I see in Justice Hope’s judgment at 49 there is a reference to a 1970 amendment in New South Wales. Were those amendments carried into the ACT version or not?
MR GRACE: No, they did not, as far as I can ascertain.
KIRBY J: They are not relevant to this matter?
MR GRACE: They are not relevant to the issue before the Court, in my submission.
GLEESON CJ: Is it not the case that an inquiry under section 475 requires a petition by the prisoner or someone on behalf of the prisoner?
MR GRACE: Yes.
GLEESON CJ: The Supreme Court of its own motion can order such an inquiry?
MR GRACE: Yes, it can.
HAYNE J: Which suggests the possibility of a posthumous inquiry.
MR GRACE: Yes.
KIRBY J: Or possibly an inquiry initiated by a court in a case where the prisoner is so completely incompetent as not able to initiate it himself or herself but where a real question has arisen which the court thinks ought to be investigated.
MR GRACE: Yes. I think the words used perhaps by your Honour, if not Justice Hope in Varley, were “disquiet” or “feeling of unease” about a conviction.
HAYNE J: For the purpose of informing the Executive so that it may take any of the very wide range of actions that may be open to it, whether they are reforming practices within particular arms controlled by them or dealing with the fate of the particular offender. For the offender the focus is unique. It is on him or her. The purpose may be much broader.
MR GRACE: Yes.
KIRBY J: There is no constitutional problem in current doctrine in a judge of the ACT doing that sort of thing?
MR GRACE: No, there is not, so far as I am aware.
KIRBY J: A federal judge would not do it, could he or she?
MR GRACE: No.
KIRBY J: This is non‑judicial power, by the look of it.
MR GRACE: Yes.
GUMMOW J: It may be conferred as persona designata.
MR GRACE: If a federal judge was ‑ ‑ ‑
GUMMOW J: Yes.
MR GRACE: Yes, only in that capacity.
McHUGH J: Hilton v Wells.
KIRBY J: But that is persona designata, not as a judge of the court.
MR GRACE: Yes. Justice Madgwick referred to the stain on the administration of justice in the Australian Capital Territory if this issue could not be resolved satisfactorily.
GLEESON CJ: Justice O’Connor in White v The King 4 CLR 165 said:
It is clear that the proceeding under ‑
sec 475 ‑
is a judicial proceeding.
MR GRACE: Yes. We would beg to differ with that conclusion.
KIRBY J: By the way, Mr Grace, can you just help me? You have put in the appeal books – I am not complaining about this – the Australian Law Report version of the decision of the Full Court of the Federal Court. The headnote in that case seems to be wrong, is it not? The course of events was the Chief Justice said he had a doubt. It was the application to the Supreme Court. That led to the decision of Justice Gray who said the Chief Justice dismissed the application. Then it went to the Full Court and the Full Court by majority dismissed the challenge. Is that correct? They say here:
per Whitlam and Gyles JJ (Madgwick J agreeing), dismissing the appeal ‑ ‑ ‑
MR GRACE: No, it is quite wrong. They allowed the appeal.
KIRBY J: Yes, that is right.
GLEESON CJ: Yes, I think we understand the argument that you are putting, Mr Grace, thanks. We might be assisted at this stage to hear from Mr Buchanan.
MR GRACE: If the Court pleases.
GLEESON CJ: Yes, Mr Buchanan.
MR BUCHANAN: May it please the Court. We say that this is a case of statutory construction.
GUMMOW J: Obviously.
McHUGH J: Well, that is obvious.
HAYNE J: We are with you so far, Mr Buchanan.
McHUGH J: We are with you on that point.
HAYNE J: You are sitting down, are you, Mr Buchanan?
MR BUCHANAN: But for the fact that a lot of what has fallen from counsel for the appellant could be put into the category of what should be done, what the legislature should have done, how it would not be a good thing, how it would be a stain on the administration of justice if a miscarriage of justice of a particular type was incapable of remedy. We say that that is the sentiment which actuated at the end of the day the decision of Justice Madgwick in the Federal Court.
GLEESON CJ: Now, what is the construction you would have us put on section 475?
MR BUCHANAN: That the word “guilt” ‑ ‑ ‑
GUMMOW J: No, no. It is not the word “guilt”.
McHUGH J: It is a compound conception
MR BUCHANAN: There must be a doubt or a question, but there is a subject matter of the doubt or question. The subject matter has three alternatives. In this case there is only one relevant alternative, that is guilt.
GLEESON CJ: Did he do it?
MR BUCHANAN: Precisely.
McHUGH J: But surely if there is a question as to whether he had a proper trial, there must be a question as to his guilt.
MR BUCHANAN: We would say not. We would say that that is a question as to the finding of guilt.
GLEESON CJ: But if somebody tapped me on the shoulder in the street and said, “Is Mr Eastman guilty of murdering the police officer?”, in the sense in which you used that I would have to say, “I haven’t got the faintest idea. I wasn’t there at the time.”
MR BUCHANAN: That does not ‑ ‑ ‑
GLEESON CJ: You then said, “How are you entitled to treat him as guilty?”
MR BUCHANAN: That does not mean to say ‑ ‑ ‑
GLEESON CJ: The answer is he has been convicted.
MR BUCHANAN: That does not mean to say that guilt does not exist. We say that guilt exists in the ordinary sense in which that word is used, quite apart from determinations by courts.
McHUGH J: So it just exists in space time.
MR BUCHANAN: I take my learned friend’s pen. I have the intention of permanently depriving him of it. I am guilty of stealing it, without having been found guilty of it, without having been convicted of it, without having been charged with it. Guilt is the operation of law, a proscription by law, upon conduct. Once the conduct which is proscribed has been engaged in then the guilt exists. So the question then for the courts is, “Does that guilt exist?”
GLEESON CJ: But this reference to guilt is in a context. It is in the context of a trial process resulting in a conviction.
McHUGH J: You have to say that the phrase “after the conviction of a prisoner” has temporal significance only and has no other relevance in construing the section.
MR BUCHANAN: That is primarily so, your Honour, although we say it has another relevance and that is to markedly distinguish the word “guilt” from the process by which guilt came to be determined and recorded. Had the legislature intended that aspects of the process by which guilt came to be found and recorded be the subject of a doubt or question into which an inquiry might be conducted, then the legislature would have quite obviously used the word “conviction”, but it did not.
McHUGH J: I know that no reliance has been placed on the words “question arises as to any portion of the evidence therein”, but the existence in the section of that phrase “any portion of the evidence”, while it is not decisive against your argument, it does tend to weaken it, does it not, because it shows that you are concerned with matters of process?
MR BUCHANAN: We would say not. We would say that once regard is had to the extrinsic materials, and in particular that passage in the report of the Law Reform Commission in 1871 to which the appellant took the Court, the Court will see that the concern at the time was with evidence that had led to a conviction or a matter that was not in evidence but of the character of evidence. However, by the time the Bill came to be enacted in 1883 the change had been made to add to the matter the subject of a doubt or a question, the matters of guilt and mitigating circumstances.
But, at the end of the day, we say that in all the circumstances, that is to say the context in particular in which the word appears and having regard to unusually clear extrinsic materials, there can be no doubt but that the subject matter of the doubt or question which would arise and which would be considered as to whether it should move the judge or the Executive to direct an inquiry was confined to the question of whether the prisoner “done it” and to nothing else.
GLEESON CJ: Mr Buchanan, is it the case historically that the prerogative of mercy and the grant of a pardon was not limited to circumstances in which guilt was assumed or accepted, but included circumstances in which there was a doubt about guilt?
MR BUCHANAN: That is so. We would, if I might take this opportunity, withdraw our written submissions on this particular point and instead ‑ ‑ ‑
GUMMOW J: Wait a minute, let us be precise about this. Which paragraph?
MR BUCHANAN: Paragraph 18.
KIRBY J: Does Judge Woods’ book on the history of criminal law in New South Wales give an explanation of how pardons work in practice? I just have no idea. Do you know of any source where we can find out?
MR BUCHANAN: There is no case whatsoever that our researches have thrown up in which pardon or any other aspect of the prerogative was exercised to address a claimed or proven irregularity in the proceeding, the consequence of which a person was convicted of a criminal offence.
KIRBY J: Why are you deleting 18 then?
GUMMOW J: Is it the whole of 18?
MR BUCHANAN: The whole of 18.
GUMMOW J: Thank you.
MR BUCHANAN: Because we accept that, if I might say so, with respect, the submissions for the Attorney-General on this point, the point raised by your Honour the Chief Justice, are correct, that in 1883, if one has a look at Bertrand, if one has a look in particular at what was said by the Privy Council at the end of their judgment in Murphy, it is clear that pardon was seen as something to which the Crown might resort to address a claimed irregularity in trial.
HAYNE J: Are there any cases in which following inquiry of this kind legislation has been promoted dealing with the particular case of the person the subject of the inquiry?
MR BUCHANAN: Not that we are aware of, although I have to say I have not chased the footnote in Mr Castles’ article on the reference appeal power which exists in the jurisdictions other than the ACT and New South Wales where he does refer to a case in Scotland where amendment was made. Your Honours have already had yourselves taken to the Chamberlain matter where Justice Nader records that pardons were granted. There was public feeling that notwithstanding the granting of the pardons the conviction should be quashed. Amendments were made to the legislation to permit the inquiry to be into that, but the Northern Territory provisions had always followed the common form appeal statute, that it to say the old section 19(a) of the 1907 UK Criminal Appeal Act, which simply permits a matter to be referred by the Secretary of State to the Court of Criminal Appeal.
GLEESON CJ: What was the outcome of the inquiry into Anderson,
Alister and Dunn?
MR BUCHANAN: I understand that pardons were granted.
GLEESON CJ: Exactly, and that followed Justice Wood’s inquiry under section 475 in which he reported that there were doubts about the guilt of Anderson, Alister and Dunn.
MR BUCHANAN: That is so.
GLEESON CJ: And the outcome of that was an Executive pardon of those people.
MR BUCHANAN: That is so.
GLEESON CJ: My recollection, because I became involved in the administration of section 475 for about 10 years, is that that particular case and other cases caused disquiet about the – if I may use this expression – “clumsiness of pardon” as a remedy for an injustice exposed in a section 475 inquiry.
MR BUCHANAN: And thus in 1993, 475 was repealed and Part13A replaced it and that provided for, amongst other things, the remedy of the quashing of a conviction and the ordering of a new trial. However, I must emphasise, your Honour, that Part 13A, although providing a much more comprehensive regime for post‑conviction inquiries than section 475, nevertheless has confined that remedy – if I can use the term – to cases of doubts or questions about the guilt of the person convicted and has made it even more clear by using the word “only”, just as has ‑ ‑ ‑
GUMMOW J: That is all very interesting but it is irrelevant. We are in the ACT.
MR BUCHANAN: Quite so, but in the ACT the same thing has happened, your Honour, Part 20 replaced section 475 in September 2001 and by section 422(1)(a) the legislature has confirmed that the subject matter of the “doubt or question” has to be the guilt of the person and again used the word “only” but gone further than New South Wales has gone and provided that further there cannot be an inquiry unless the “doubt or question” also concerns a matter of the evidence or a matter that could have been evidence.
KIRBY J: Where do we find this legislation?
MR BUCHANAN: Part 20 is in the materials in the first respondent’s statutory materials. It also might have been copied by the library. I do apologise, the appellant’s additional materials, my learned friend reminds me, page 9.
KIRBY J: Was that in force in respect of the time the Chief Justice acted here or not?
MR BUCHANAN: No.
KIRBY J: So this has nothing to do with what happened in this case? It is simply, you say, an indication that if Parliament wants to make broader provisions they can do so and they have in particular respects but they have not fixed this problem up – that is your point.
MR BUCHANAN: If it is seen as a problem, no, they have not. That is to say, the legislature has made the deliberate decision, not just in the year 2001 in the Australian Capital Territory, not just in 1993 in New South Wales, but also ever since 1883 when every occasion has arisen to reconsider section 475 on re‑enactment of the Crimes Act, a re-enactment of section 383 in the Crimes Act, in adoption of that legislation in the ACT. In the other amendments that have been made to section 475, no change has been made to the description of the matter about which there might be a doubt or question which might actuate a direction for an inquiry under the provision. So that is all that its relevance is. We do not place heavy emphasis upon it, your Honour. We look at the words of the statute in their context and if there be a suggestion of ambiguity, we say there is none, at the extrinsic materials, for the purpose of confirming that the word “guilt” is used in its ordinary and natural meaning.
GUMMOW J: Now, we do not have the full statute unfortunately. This repeal of 475 and its replacement by this other legislation, there is a pending proceeding, is there? It is saved by the Interpretation Act, is it not? Why is this still alive? It is only by virtue of the Interpretation Act?
MR BUCHANAN: The Interpretation Act would apply in any event, your Honour.
GUMMOW J: That is agreed, is it?
MR BUCHANAN: Yes.
CALLINAN J: Mr Buchanan, there is a recent case in the House of Lords, R v H [2003] 1 WLR 411, Lord Bingham of Cornhill, in particular, at page 419. You may not be aware of that case.
MR BUCHANAN: I am not, your Honour. If I could take it on board ‑ ‑ ‑
CALLINAN J: Perhaps the parties might look at it and you might see whether you can derive any assistance from it.
MR BUCHANAN: Thank you, your Honour, I will certainly do that.
CALLINAN J: It is its own statutory regime, but their Lordships do discuss the domestic law in relation to an inquiry of this sort or generally of this sort, and they also discuss what is meant by “guilt”.
MR BUCHANAN: I will certainly have a look at that over lunch, if I may, your Honour.
CALLINAN J: And it is tied up to the European Charter and things of that kind, but there may be something there that assists.
MR BUCHANAN: Your Honours, if I could make some further submissions in support of our fundamental submission that the word “guilt” in the subsection bears its ordinary and natural meaning. Throughout their submissions the appellant and the third respondent, when talking of the impact of unfitness, are forced to the position that the impact is upon the verdict; the impact is upon the finding of guilt. We say a clear distinction needs to be made between something that is a curial determination and the subject matter of that determination. Just as a finding of negligence is not negligence, so a finding of guilt is not guilt. I can be guilty, for example, of negligence without any finding. I can be guilty of a sin of omission without any court having found that. It is that distinction that we say is well known to the law and, in fact, there is no precedent. Your Honours will have noted that none is advanced for the appellant or the third respondent for otherwise reading the word “guilt” in any context.
KIRBY J: Yes, but that may simply be because this problem has not arisen. You overpitch your case by saying there is a deliberate decision of Parliament. That is not how things happen. Parliament just does not address a problem and then it comes up in the real world and then courts have to look at statutes and see whether or not they apply in the particular case, and this is something which is distinct, it is almost unique, one would think, or certainly unusual, and we have to see whether this statute in its context, with the word “guilt” in the statutory context, applies in this case. If you ask whether it should apply, the answer is pretty clear that yes, it should apply.
MR BUCHANAN: Yes, your Honour.
KIRBY J: But then the question is, does the context give you reinforcement for that intuitive feeling?
MR BUCHANAN: Part of our argument, your Honour will understand, is that against the background of the relative absence of rights of appeal at the time of enactment of this provision, the statements of intention that are to be found in the extrinsic materials which confine that intention to the redressing of factual errors, not legal errors or procedural errors, does give some point to the conclusion that the legislature meant exactly what it intended ‑ ‑ ‑
KIRBY J: Only if you take a view that legislation is to be always construed in a historical way speaking at the time it was enacted. I do not take that view, neither does the House of Lords recently.
MR BUCHANAN: May it please the Court.
KIRBY J: If you take the view that a continuing statute intended to apply in the whole range of circumstances is to be given an ambulatory meaning as circumstances change and arise, you just do not agree to the major premise.
MR BUCHANAN: There still must be warrant, we would submit, for reading the word “guilt” as meaning something other than its ordinary and natural meaning, as meaning something which no one has ever suggested it has meant before.
HAYNE J: The Attorney-General of your polity suggests the contrary, is that right?
MR BUCHANAN: The Attorney-General’s submissions are the same as those for the appellant.
HAYNE J: Yes, so we have this curiosity of the Director propounding a construction of an Act contrary to the construction propounded by the Attorney, is that right?
MR BUCHANAN: It is a curiosity, that is the case, your Honour, but there is a historical reason having regard to the proceedings for the ‑ ‑ ‑
HAYNE J: Well, the historical reason seems to be, does it, correct me if I am wrong, that the Director, rather, not the Attorney, considered it part of his function to interrupt an Executive inquiry into the conduct or the inquiry into whether the conviction was properly entered. Is that right?
MR BUCHANAN: Your Honour, this is part of the argument which my learned friend Mr Gageler is taking, but if your Honour would wish to hear from him now, I am very happy to resume my seat or we can address at a later stage, but ‑ ‑ ‑
HAYNE J: Not having heard the appellant on it, but I must say, Mr Buchanan, that it is, for my own part and I speak only for myself, passing strange that a director would stand propounding a construction of legislation of this kind at odds with the construction propounded by the Attorney of the polity concerned.
KIRBY J: Respectfully, I do not agree. I think it is part of the price of the independence of the Office of the Director of Public Prosecutions. He does not kowtow any more to the Crown or the Attorney-General. He has his own independent statutory functions. It is the whole point of having a DPP.
MR BUCHANAN: But, in any event, if I might just put this on the record and if my learned junior does not begrudge me the opportunity, the Attorney’s involvement in the proceedings has been from the outset to provide a proper contradictor and your Honours will have seen the history of the proceedings that that has been a desirable, indeed necessary, course and the DPP has, with the greatest respect, welcomed the presence of the Attorney-General taking the opposing position on the substantive question on the merits of the case. But as to the other matters, if I could perhaps leave that to my learned junior.
Your Honours, I am not sure about the extent to which your Honours would wish me to take you to the materials showing that the word “guilt” has only ever, in common usage or legal usage, borne the meaning of having committed the offence.
McHUGH J: Yes, but when a jury returns a verdict of not guilty the law takes the view it is conclusive evidence that you were not guilty of the offence.
MR BUCHANAN: Yes.
McHUGH J: And, likewise, when a jury returns a verdict of guilty it is conclusive evidence of your guilt.
MR BUCHANAN: Yes.
McHUGH J: So why is not 475, when it speaks about a question arising as to her or his guilt, referring to the guilt as established by the jury’s verdict? Particularly in the context of this section, 473 and other sections. They are all talking about convictions, judgments being reversed and so on.
MR BUCHANAN: There is no doubt, your Honour, that there is, in the context of a subsection, a relationship between guilt and the finding which is implicit in a conviction. No doubt about that at all. But that does not mean to say that it is the same thing. To the contrary, the use of a word different from “conviction” or “finding of guilt” demonstrates that it was something else intended by the legislature.
KIRBY J: You say that the sentence with the word “conviction” in it, if it had been the purpose to look at the whole ambit of what goes into a conviction, the legislature would have said that, but instead it, as it were, syphoned off part only of that, namely a doubt or question as to guilt, and that that suggests that therefore the legislature did not want to get into arguments about the procedures or defaults of a technical kind but was concentrating on the fundamental issue of guilt or innocence.
MR BUCHANAN: Precisely so, your Honour.
KIRBY J: And that the juxtaposition of conviction and guilt is the – really, that is the anchor on which you rely.
MR BUCHANAN: That is a substantial reinforcement of our primary submission.
HAYNE J: What then is the function served by the phrase “doubt or question arises as to any portion of the evidence therein”?
MR BUCHANAN: It is conceivable that a doubt or question could arise about a portion of the evidence without it being a doubt or question about a person’s guilt. One can conjure up questions that might so arise. Whether they would be such as to move a judge or the Executive to authorise an inquiry if they did not have an impact upon guilt is difficult to say. But at the end of the day the way that the section has been constructed it is admitted with the words “any portion of the evidence therein” being an optional subject matter of a doubt or question which is to be considered before authorising an inquiry. It does not mean at the end of the day the word “guilt” means anything other than what it says.
Justice Hope in Varley’s Case expressed curiosity and was unable to explain to himself what function was performed by a “portion of the evidence”. All that we can advance is the suggestion that it arises from the original draft in 1871 and that by 1883 it was considered that to make abundantly clear what could be the subject matter of an inquiry the word “guilt” was added, but at the end of the day it does not make very much difference.
McHUGH J: But perhaps it was regarded as quite important because was not one of the motivating factors for this legislation the fact that certain people had been sentenced to death for rape and there were questions that had subsequently arisen as to the character of the complainant? So it not only goes to that part of the evidence.
MR BUCHANAN: It goes to a portion of the evidence but which at the end of the day would have gone to an issue of guilt, namely was the rape committed without the consent of the prosecutrix, but, yes, your Honour is quite right.
KIRBY J: Why would you not, first of all, starting from the fact that this is intended to be remedial, construe the words, first of all taking into account the context, the conviction of the prisoner, and then dissecting it, “any question arises as to any mitigating circumstance in the case”? Why is not that phrase big enough to incorporate something mitigating to mitigating circumstance in the case, that he has not had a trial according to law if he is not competent to face trial?
MR BUCHANAN: Because mitigating in criminal justice is a matter, particularly when attached to the word “circumstance”, which affects matters of guilt, that is to say degree of culpability, degree of criminality.
KIRBY J: You would take that view in isolation, but after you have dealt with guilt you have this catch‑all of any mitigating – you could almost put the word “other” in there – any mitigating circumstance of the case. It is a very broad expression.
MR BUCHANAN: It is a broad expression but it is known to the criminal justice system. It was in the 19th century known to the criminal justice system as something that affected the punishment which the offence warranted. In our submission, having regard as well to the fact that the prerogative of mercy included the power to mitigate sentence, to remit sentence, is clearly explicable as being something that at the end of the day is referable to the degree of criminality in fact involved in the offence of which the prisoner was guilty, was found guilty.
GLEESON CJ: Suppose there was an allegation that a juror had been corrupted. Could that be the subject of a section 475 inquiry?
MR BUCHANAN: No, your Honour. We say that that and unfitness are two matters going to mistrial which could not be, to use the word perhaps inappropriately, cured by an inquiry under section 475 just as much as they could not have been cured in the 19th century by, subject to the matter that Justice McHugh raised about amending the record, writs of error or venire de novo and obviously not in a case of arrest of judgment unless the bribery came to light very quickly. So those are two matters going to mistrial for which there is no remedy except, of course, not to overlook that just as with such a case this appellant could apply to the Executive for a Royal Commission.
McHUGH J: Supposing the trial judge, contrary to the then existent practice in New South Wales, had refused the prisoner the right to make a statement from the dock. At that stage the prisoner could not give evidence, but the practice was that the prisoner could make a statement from the dock. Now, why would that not come under 475?
MR BUCHANAN: Because it had nothing to do with guilt, but as well there would be, depending upon when we are talking about, either writ of error, venire de novo or an appeal. At the end of the day, your Honours, yes, it is plain that on our submission as to how the provision should be construed it was not remedial of all errors which could occur in the criminal justice process, but that was not the intention. The intention was that it be, to the extent that it could be remedial, remedial of factual errors only, the factual substratum to the criminal justice process and not a procedural matter.
GLEESON CJ: So that if, as in that English case relatively recently where it was found that a jury at a murder trial went away and used an ouija board to consult the spirit of the deceased person who allegedly said to them, “The accused was the person who killed me”, that would not have been capable of remedy under section 475?
MR BUCHANAN: We would say certainly not, nothing to do with the guilt of the prisoner, nothing to do with the question of whether the offence was committed and all the requisite elements. That is a matter that is either to be addressed on appeal, if there is appeal available, or else to be otherwise addressed by the Executive. The difficulty, it is admitted, is that the legislature has not provided a universal panacea.
The appellant and the attorney would seek to have it construed as if it did but that was never the intention and words have not been used to permit it. To the contrary, words have been used to confine the subject matter of the remedy to a particular aspect of criminal justice, namely, whether the person was in fact guilty – it does not matter about the verdict – whether they were in fact guilty of the offence charged.
KIRBY J: Mr Buchanan, do you remember how in England – I think it was because of the intervention of Queen Victoria – they had the principle that you found a person not guilty on the ground of insanity, whereas we went the different path ‑ ‑ ‑
McHUGH J: No, they went the opposite, guilty but insane.
KIRBY J: Guilty but insane, yes.
MR BUCHANAN: Guilty but insane.
KIRBY J: Now, where does one find a description of that? Is that somewhere in your ‑ ‑ ‑
MR BUCHANAN: My memory is Felstead v The King.
McHUGH J: It is dealt with in Sir Owen Dixon’s article, “A legacy of Hadfield, M’Naghten and Maclean”. It is in “Jesting Pilate” that he sets out the whole history of it.
MR BUCHANAN: But a very clear distinction existed in the Lunacy Act at 1883 between inability to stand one’s trial and, thus, a separate jury needed to be convened to determine that, and a question of, as it was then described, as now, insanity at the time of having committed the offence.
McHUGH J: The English legislation was called Trial of Lunatics Act, I think.
MR BUCHANAN: Something like that, yes, your Honour. We have included, if it is of assistance, under tab F the provisions which operated in New South Wales in 1883. There is an amending Act which is on top of the principal Act but, as it happens, on the very first page of those materials in the amending Act of 1881 section 2 makes provision for addressing the question of unfitness then described as insanity but later goes on to talk about not guilty but insane, if your Honours see from the third line onwards on the next page of the Lunacy Act Amendment Act of 1881.
The system was pretty much settled as it is today by 1881 and unfitness was unknown but as we have also included in our materials the next tab, paragraph G, the power also existed in 1881 for evidence to be taken by a commissioner under the Great Seal, that is to say, a Royal Commission should the government of the day think that it is warranted. As we have submitted in our written submissions, the appellant would not have been in 1883, just as he is not now, completely without remedy.
McHUGH J: Now, in your research, what about the Dean Case? Was there not an inquiry in respect of Dean in the last century which ultimately led to Meagher being struck off the rolls because of Sir Julian Salomons revelations in the Parliament. Dean had been, I think, convicted of attempting to poison his wife, was it, and then he was pardoned, I think. Was there a 475 inquiry there, do you know?
MR BUCHANAN: I have not researched that, your Honour, and I just do not know the answer.
McHUGH J: There was an inquiry, I think, because he was then subsequently convicted of perjury.
MR BUCHANAN: Yes, it certainly rings historical bells but it is not something that I have looked at.
Your Honours, it is said by Justice Madgwick that there have not been many cases under section 475 and true that is until the early 1990s, but the reason for that might have been that the common form reference appeal was provided for in the 1912 Criminal Appeal Act in New South Wales in section 26. In other words, it sat side by side with section 475 in the Crimes Act and there is a body of law as to how reference appeals, if I might so term them, were to be addressed and dealt with.
KIRBY J: Was there equivalent legislation in the Capital Territory?
MR BUCHANAN: No, your Honour. In the Capital Territory original and appellate jurisdiction was first vested in this Court. This Court as at 1909 already had a power to order a new trial in unqualified terms, probably the first jurisdiction in Australia, and although provisions of the New South Wales Crimes Act adopted in the ACT continued to operate - for example, your Honour Justice McHugh, I think, asked, when was writ of error abolished? I suspect 1983, because that was when reserved questions were abolished. Section 470 of the New South Wales Crimes Act in its application to the ACT is repealed by the Crimes Amendment Act of 1983.
GUMMOW J: You have to be sure about this.
MR BUCHANAN: I have made a note to check that, your Honour. I know that the reserve question power was repealed, but I need to research that and I will at lunchtime.
GLEESON CJ: This does not sit well, does it, with the idea that the concept of a miscarriage of justice does not, by any means, necessarily involve a conclusion by an appellate court that an innocent person has been convicted?
MR BUCHANAN: It does not. One can have a miscarriage for a number of reasons. In 1883 I do not know that the term necessarily in all its respects meant what it means today and the term “mistrial” was used more often to describe a trial which through procedural error was a nullity, but, at the end of the day, from 1912 onwards, and as Sparre in 1933 shows in the ACT by this Court, miscarriages for whatever reason could be redressed, if it was appropriate, by a conviction being quashed and a new trial being ordered.
So that probably, at the end of the day, does not shed too much light, except the point that we seek to make, namely that, why was section 475 left unrepealed when these powers of appeal were conferred in the early 20th century in New South Wales and the ACT, and with such amplitude so far as a new trial was concerned, if the word “guilt”, taking that word, was not intended to mean exactly what it means in ordinary parlance and exactly what it means in legal usage wherever it occurs.
KIRBY J: The Criminal Appeal Act is still to this day not enacted in the Capital Territory. I think we learnt that in Conway, or at least I learnt it in Conway.
MR BUCHANAN: Your Honours would be aware that that jurisdiction has since been transferred to the Court of Appeal of the Australian Capital Territory Supreme Court.
KIRBY J: But in terms that the Federal Court enjoyed it, or in terms of the common form for the court of Criminal Appeal Act.
MR BUCHANAN: I need to check that, but I am almost sure that is the case.
GLEESON CJ: I am not absolutely convinced about ordinary parlance or legal usage in relation to the word “guilt”. The expression “not guilty” does not mean innocent, does it?
MR BUCHANAN: It does not, but, your Honours, when the verdict is returned, one needs to have regard to the fact-finding context in which it is returned and that part of that context and obviously an important part of that context is the question of the burden of proof, the fact that it is an adversarial proceeding and the extent or the degree of that burden of proof.
KIRBY J: But I thought, as Justice McHugh said earlier, and I thought it had been said in our Court, that a verdict of not guilty is taken by the law to be equivalent of innocence.
MR BUCHANAN: It is taken by the law to mean that as between the Crown and the subject, the subject is innocent.
GLEESON CJ: Yes, but it is not a pronouncement by the jury that they find the accused innocent.
MR BUCHANAN: It is certainly not, that is quite so. That is for fact‑finding purposes, for determining the question, “Does the accused bear guilt? Does guilt exist in respect of this prisoner and the charge that is made against him or her?”
McHUGH J: But the word “guilt” is obviously used in the context of the jury trial. After all, when the jury comes back, they are asked, “Have you agreed upon your verdict?” “Yes”. “How do you find the prisoner? Is he or she guilty or not guilty?” “Guilty.” Now, that is what 475 is directed to, is it not?
MR BUCHANAN: We would say not. We would remind the Court that there are numerous illustrations in the 1883 statute, in the 1900 Crimes Act where “guilt” in its ordinary sense is used and distinguished from a finding of guilt in the very same provision. If I can take your Honours to the 1883 statute, just an illustration is alternative verdicts - this is under tab C in the first respondent’s further materials and if your Honours go to section 47 – no, I am sorry, my mistake – 371 – I was thinking of the current Crimes Act – 371 all the way through to 377, when talking of the availability of alternative verdicts, if a jury is not satisfied of the guilt of the accused of the offence charged but there is a minor offence within the offence charged, then they may find – using the word of the statute - the accused guilty of the latter offence. So the legislature ‑ ‑ ‑
McHUGH J: But that is against you, is it not, because when 371 says “it appears that he is not guilty”, it means not guilty according to the directions of law and the evidence. After all, how can this question of guilt be recognised except in respect of the elements of the offence and what the jury’s finding is concerning the evidence in relation to that?
MR BUCHANAN: Because, as Blackstone says, all you need is proscription by law and conduct upon which that proscription operates and you have guilt. Blackstone does not talk about the need for a finding or a court’s determination. There is guilt straight away there and then.
GUMMOW J: Where does he say this?
MR BUCHANAN: In the first respondent’s further materials, there is one illustration and in some additional materials we have handed up a number of other illustrations. At tab A in the first respondent’s further materials, there is an extract from volume 1 in which at page 46 Blackstone inveighs against ex post facto laws, retrospective laws, and the terms in which he does so are illuminating. This is about point 2 on page 46:
There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action –
conduct –
(indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law –
No discussion of the need for adjudication or determination. The guilt exists as soon as the proscribed conduct has been engaged in. We handed up to the Court a copy of the fourth book of Blackstone and highlighted the word “guilt” where it appears, which is numerous times. I have not counted the number of times on which it appears.
KIRBY J: But is this not exactly what this Court has been saying over and over and over again, that you cannot take statutory language and just take a word. You have to read the word at the minimum in the sentence, and preferably in legislation in the whole statute or at least the part of the statute. You have to be looking for its objective. It is a mistake. The Court has been saying it over and over again, but advocates still come here and courts below still just look at the word as if it can be read in isolation. It is a wrong way of construction.
MR BUCHANAN: But the context in which the word “guilt” appears in this provision only ‑ ‑ ‑
KIRBY J: It points both ways, Mr Buchanan. On the one hand the strength of your argument is it uses the word “conviction” and could have gone on to say “any doubt as to the conviction”, but instead it shows particular aspects of the conviction. That is the strength, it seems to me. But pointing in the other direction is the context of the trial, the purpose of responding to an injustice that has arisen in the trial and the remedial nature of the section. So it is a quandary. We cannot get away from that.
MR BUCHANAN: Yes, except that the trial is over. The provision cannot operate unless the trial is over. The trial having taken place, it is passing strange if it were intended that the provision operate upon the consequences of an aspect of the trial without saying so. Instead, what it does is ‑ ‑ ‑
KIRBY J: But the section acknowledges the trial ‑ ‑ ‑
MR BUCHANAN: - - - talk about things that are the subject matter of the trial. Guilt, just like mitigating circumstances, to a lesser extent I admit, portion of the evidence, are matters that are the subject of a trial rather than incidents of the trial such as arraignment, taking a verdict, returning a verdict, entering a conviction, passing sentence. Those are all matters which we say are clearly distinguishable from that which is the subject of a trial. Why do we have a trial? We have a trial to determine what happened in the past and whether that thing which happened in the past is something which the law prohibited. It is an inquiry into matters of fact, just as a civil trial is an inquiry into matters of fact, and then a determination of whether negligence existed, for example.
McHUGH J: But if I pick up a newspaper and I read about a conviction of somebody in some foreign country, and the question is raised about the impartiality of the tribunal or the witnesses, a question that arises in my mind, rightly or wrongly, is the guilt of that person.
MR BUCHANAN: Amongst other things.
McHUGH J: Yes.
MR BUCHANAN: It may well, your Honour, but that is because you have read a reference to aspects of the trial. That is not what this provision speaks of. Instead, this provision speaks of a subject matter of the trial, one matter in respect of which there needs to be a finding before there can be a conviction. Given that the legislature throughout the 1883 Criminal Law Amendment Act, the ACT Crimes Act constantly distinguished between guilt on the one hand and finding that guilt on the other hand, we would submit that it is simply an elementary understanding of the purpose and process of judicial determination to appreciate that the subject matter of determination is not the same thing as the determination.
McHUGH J: Why cannot you read the section quite naturally:
Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt –
as the result of that conviction, et cetera.
MR BUCHANAN: Because guilt does not arise as the result of a conviction. Guilt inures irrespective of a curial determination and, secondly, we would say because there is no warrant for reading words into the legislation which are not there, which the legislature has not put into the provision. If the legislature had intended that the verdict or an aspect of the trial be the subject of an inquiry, then it was the easiest thing for it to do so by simply repeating the word “conviction” or using a term which it knew well, “finding of guilt”.
GUMMOW J: It seems to me the determination of guilt is an essential and exclusive attribute in the exercise of judicial power, you have said that.
MR BUCHANAN: Yes.
GUMMOW J: That is the starting point.
MR BUCHANAN: Yes, your Honour.
GUMMOW J: But you do not adopt that starting point.
MR BUCHANAN: We use that to illustrate that the guilt which has been determined is not the same thing as ‑ ‑ ‑
GUMMOW J: What people say in the street about whether someone is guilty or not guilty is irrelevant in this…..discourse. We are talking about the rule of law at the bottom, and you are not.
MR BUCHANAN: Yes, your Honour. We would submit that ‑ ‑ ‑
GUMMOW J: You are trying to construe this section by reference to some other universe of discourse.
MR BUCHANAN: With respect, not, your Honour.
GUMMOW J: Some popular universe of discourse.
MR BUCHANAN: To the contrary, your Honour, that is how we would characterise ‑ ‑ ‑
GUMMOW J: We are talking about facts that are somehow suggested in pubic opinion.
MR BUCHANAN: To the contrary, your Honour.
KIRBY J: You see yourself as a real black‑letter lawyer here. You have come here to insist on the black letter of the text.
MR BUCHANAN: Absolutely, and we say that ‑ ‑ ‑
GUMMOW J: You are the absolutely opposite, it seems to me.
MR BUCHANAN: All I can say, your Honour, is that if it is an aspect of the exercise of judicial power to determine something, then necessarily the process and the concept of determination is something different from that which is determined.
McHUGH J: Yes, but guilt in the context of a Crimes Act has no meaning except as the product of a judicial determination.
MR BUCHANAN: To the contrary, your Honour. We say that it has all meaning.
GUMMOW J: That is the point I was putting to you and that is where we differ.
MR BUCHANAN: You see, the question is: what is it that is being found? What is being found is a fact.
GUMMOW J: What is being found by whom?
MR BUCHANAN: The judge or the jury, whomever determines the question of fact, and that fact is something that ‑ ‑ ‑
GUMMOW J: It is not just a question of fact; there is law bound up with it.
MR BUCHANAN: That is part of the process by which that determination is to be ‑ ‑ ‑
GUMMOW J: There is this mischievous thing called mens rea for a start.
MR BUCHANAN: Certainly, your Honour.
GUMMOW J: There may be another mischievous thing called provocation.
MR BUCHANAN: Those are all matters going to the question of whether guilt exists or not, but guilt exists irrespective of whether a court has said that a person is guilty, and the question for a jury is: does that guilt exist?
GUMMOW J: When you say “exist”, what do you mean by exist, in some sensory sense?
MR BUCHANAN: Inures. It is a state of being, it is a fact, that is how it has been defined in any place which defines a word. It is a state of being or a fact and the question is: does that fact exist in respect of a particular person? One should not be, with respect, diverted from the distinction between the subject matter and the process of determining whether the subject matter exists by the procedural context, the rules which are laid down for the determination of the existence of that subject matter.
McHUGH J: But supposing somebody has been convicted of murder and provocation was a real issue and therefore the verdict on one view should have been that of manslaughter. It just does not make any sense to talk about guilt in that context other than what has happened in the determination of the trial.
MR BUCHANAN: Your Honour, I would not want to be thought to be contending that the fact that a trial has occurred and what occurred in the trial is irrelevant from the considerations upon an exercise of the power to direct an inquiry and then upon the conduct of an inquiry, and then maybe upon a report as to the evidence taken in the inquiry. Of course those are relevant matters but they are all different from, with all due respect, the jurisdictional fact to the exercise of the power, and the jurisdictional fact needs to be a doubt or question arising as to the guilt of the person.
GLEESON CJ: Mr Buchanan, let it be assumed for the moment that your construction of the section is correct. Bearing in mind what is involved in fitness to plead or the absence of fitness to plead, why would not a serious question as to fitness to plead always raise a question as to guilt?
MR BUCHANAN: Because, irrespective of whether or to what degree a person might be fit or unfit to plead, their guilt continues to exist. Say, for example ‑ ‑ ‑
McHUGH J: That assumes that they were fit at the time of the crime but not at the time of the trial.
MR BUCHANAN: It assumes they were not insane at the time, because that is just one of the aspects like, for example, provocation perhaps, that goes to the question of whether, having regard to the charge, the accused is in fact guilty from the moment the conduct occurs, as they walk into the courtroom, as they are charged. The guilt continues to exist or not, as the case may be.
GLEESON CJ: But the judge of the Supreme Court exercising the power
to give a direction under section 475 is confronted with the following state of affairs. There has been a lengthy trial, there has been a verdict of a jury convicting the prisoner, the judge knows or can find out the evidence that was given at the trial, and then when you add to that a conclusion on the part of the judge that there is at least a serious question as to whether the accused was fit to do the things involved in being fit to plead, does that not necessarily raise a question in the judge’s mind as to the guilt of the person?
MR BUCHANAN: It could not, we would say with respect, because it is completely – that is something that affects the process of determining guilt but it does not affect the question of whether they are guilty or not.
GLEESON CJ: The judge presumably will not have read the whole of the evidence and formed an independent opinion on what the evidence amounts to. Are you saying that it would be the task of the judge in a case such as the present to make up his or her own mind about the guilt of the accused and then consider whether the absence of fitness to plead had any bearing on that?
MR BUCHANAN: No.
GLEESON CJ: Then if the judge has not made up his or her own mind about whether the prisoner is guilty, and the judge only knows that there is a doubt about fitness to plead, why does that not necessarily raise in the mind of the judge a question of guilt in the sense in which you used the word?
MR BUCHANAN: Because all that it raises is a question of whether the accused was fit to undergo trial. It does not bear at all upon the question of whether the accused with all the necessary elements committed the offence with which they are charged. This is why, with respect, the procedure for addressing unfitness if, in the ACT, the trial judge is told by the Mental Health Tribunal, “This person won’t be fit for the next 12 months”, must conduct a special hearing, the purpose of which is to determine whether the person should be acquitted of the charge. If the jury determines that there was no guilt in that sense, then the person could still be desperately unfit to plead but as far as the jury is concerned they never bore any guilt, and that would presumably be because the evidence reflected in an ideal system the fact or state of the person not having guilt for the offence, not having engaged in the conduct with any other necessary elements which is proscribed by the law.
GLEESON CJ: Take the case of an accused person who at his trial stands mute and is convicted and then it appears at some later stage that at the time that person was standing mute that person was in a psychiatric state that made it impossible for him to comprehend what was going on around him, although nobody realised that at the time. When you are provided with that information, does that not raise a question as to the guilt of the person?
MR BUCHANAN: No, your Honour, it raises a question as to whether the trial was a nullity. It does not tell one anything about whether the person engaged in the conduct with which they were charged was proscribed by law before they even enter the courtroom, which is all that guilt in fact is.
McHUGH J: Yes, but it is because you keep concentrating on guilt as being outside the courtroom, but the guilt that is referred to in this particular case is not being guilty of offending against the Fifth Commandment; it is being guilty of offending against the particular section of the Crimes Act.
MR BUCHANAN: Yes, and that guilt exists as soon as the offending has occurred. If it has not occurred, then the person of course is not guilty, and if the evidence reflects that, or more to the point the Crown is not able to prove that the evidence reflects that with which the person is charged, then the finding of not guilty should be returned. That is how the procedure works, but it is a fact-finding process and, as I have already submitted, the essential fact that is being determined is the existence or otherwise of the guilt with which the person is charged, which, if it exists, necessarily preceded the charging, the administration of criminal justice in the case of that person.
McHUGH J: Well now, supposing the judge directed the jury it was sufficient to convict the accused on the balance of probabilities.
MR BUCHANAN: A nullity.
McHUGH J: You would say that no question arises as to his or her guilt?
MR BUCHANAN: No, it does not tell us anything about whether the person in fact engaged in the proscribed conduct or not; it just tells us that they did not get a trial according to law.
CALLINAN J: Is the conduct proscribed if it requires for its commission at law a mental element and that mental element is not present?
MR BUCHANAN: Then the person is not guilty. They do not bear the guilt, the guilt does not exist. If the evidence reflects that fact, leaving aside burden of proof, then the finding ‑ ‑ ‑
CALLINAN J: I am just questioning your use of the words “conduct proscribed”, that is all.
MR BUCHANAN: By that term, I intend to embrace all the elements of the offence charged, be they matters of negative elements, mental elements, even matters of exception where the burden of proof might be upon the accused. Your Honours, the submissions that we have made contain, if I can just ask your Honours to note it, not just places in the Crimes Act where the word “guilt” is distinguished from a finding of guilt or an admission or guilt or a conviction, but other statutes in the Territory at the time in which that same distinction is made between guilt as a concept and a finding of guilt as a curial determination. Those submissions can be found in footnote 78 on page 20 of our submissions.
If I can ask your Honours also to have regard, if you would not mind, to the extract from the fourth book of Blackstone on homicide and to the numerous references to guilt which have been highlighted in that extract. It is because no matter what aspect of legal usage is consulted, whether one is talking about the 19th century or whether one is talking about 2001, whether one is talking about statute or whether one is talking about common law, or commentary about common law, every time a distinction is made between “guilt” and “finding of guilt”. At the end of the day, the submissions for the appellant and the third respondent, if I can so characterise them, depend upon the Court accepting their submission that a doubt or question as to unfitness goes to a finding of guilt, and that that is what is embraced in section 475(1) – a finding of guilt, rather than “his or her guilt”. We rely upon the possessive pronouns “his or her” as reinforcing the conclusion that it is not something which is the subject of a conviction.
CALLINAN J: Mr Buchanan, could I ask you to focus on the words “or any portion of the evidence therein” that is in the case. Why is a question not raised as to a portion of the evidence if the accused is, by reason of unfitness to plead, incapable of cross-examining or giving instructions with respect to that portion of the evidence?
MR BUCHANAN: It might be in a particular case, but there is no evidence, nor was there a claim that it was in this case.
CALLINAN J: No, but that is the question that surely the inquiry is going to try to find the answer to.
KIRBY J: You cannot say that at the outset, that is fatal to you. If it is a possibility, then it has to be inquired into.
CALLINAN J: That is the question. It does not have to be conclusively established or, indeed, established at all at this stage. Why is not an inability by reason of unfitness to plead, to deal with a portion of the evidence, why does that not give rise to a question as to a portion of the evidence?
MR BUCHANAN: Well, your Honour, it may but Kesavarajah tells us that unfitness during any part of a trial means that the whole of the trial was a nullity and so it would ‑ ‑ ‑
CALLINAN J: It may mean less than that too. It may mean that, but it may mean less than that. It may simply be this man was not unrepresented throughout, was he? He cross-examined himself, I think, at some stage, is that not right?
MR BUCHANAN: I am not aware that ‑ ‑ ‑
CALLINAN J: In any event, it does not matter whether that is so or not. If he did not, he had to give instructions. If he was unfit to plead, is there not a question whether he could have given adequate instructions, not only as to cross‑examination on the Crown evidence, but also as to the evidence that might be called on his own behalf?
MR BUCHANAN: Yes.
CALLINAN J: Or as to his own evidence. Did he give evidence? I cannot remember.
MR BUCHANAN: He did, your Honour.
CALLINAN J: Why would not unfitness to plead necessarily raise a question as to his capacity to give evidence and therefore a question as to a portion of the evidence?
MR BUCHANAN: Your Honour, it in some particular given circumstance may.
CALLINAN J: Why does it not here?
MR BUCHANAN: Because that was not the direction given by the Chief Justice, nor was it sought for that purpose. It was given and sought because of the word “guilt”, by reference to guilt, in the subsection and the error we say that was made was the error to say that unfitness is a doubt or question as to the appellant’s guilt when it is not. We say as well that no case was made or suggested that it gave rise to a question as to a portion of the evidence either.
CALLINAN J: I think part of Mr Eastman’s application did refer to some of the evidence, did it not, and the Chief Justice rejected that part of his application?
MR BUCHANAN: He did. That is so. I think that is the subject of other proceedings by Mr Eastman.
CALLINAN J: So you say that is an answer. The fact that the Chief Justice did not give a direction in relation to that means that that is not in issue here.
MR BUCHANAN: We say, your Honour, that this appeal is from a decision that the Chief Justice, as he then was, was not authorised to make the direction for the inquiry that he made and ‑ ‑ ‑
CALLINAN J: Which was concerned only with guilt and not with apportionment of guilt.
MR BUCHANAN: It was concerned only with guilt.
GLEESON CJ: Mr Buchanan, is that a convenient time?
MR BUCHANAN: It is, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Buchanan.
MR BUCHANAN: Thank you, your Honours. Before resuming my submissions can I answer a couple of matters raised before lunch. Justice Gummow was concerned to know the time and by what legislation the writ of error was abolished in the Territory. The answer is that the writ had been provided by section 471 of the Crimes Act. That was repealed by the Crimes Amendment Act 1983 – section 31, schedule 3 – and it is perhaps appropriate to note in that context that the reserved question of law provision, section 470, which arguably founded a power to award venire de novo on the decision of the House of Lords in 1921 in Crane v DPP, it was repealed in the Territory in 2001 by the Justice and Community Safety Legislation Amendment Act 2001, clause 1.6 of schedule 1.
Secondly, your Honour Justice Callinan asked if the first respondent had a view about R v H in the recently reported decision in the House of Lords, which we have had copied for the Court. The first respondent would say that this decision does not hurt him or help him. It does not seem on a perusal to have anything to say as to the meaning of guilt in any specific context. In addition, from paragraph 7 of the decision on page 416 – [2003] 1 WLR 411 at 416 paragraph 7 it is noted that in England a jury on the equivalent of what in the Territory would be a special hearing does not decide whether the mens rea of the offence existed to the requisite standard or, indeed, at all. It is simply whether the actus reus was committed by the accused for the purpose of determining whether the accused should be acquitted. But at the end of the day the substance of the decision seems to be that a special hearing in England does not, as here, result in a conviction and, accordingly, it is not part of the criminal process and, accordingly, the requirements as to the criminal process by the European Convention do not apply.
Your Honours, if I could return to the question of the sense in which guilty is known to the law. We would give some illustrations of cases in which the law knows guilt without any conviction or finding having been made. One would be the concept of a consciousness of guilt - classically, for example, Edwards v The Queen. Lies can be used as evidence of a consciousness of guilt. They are the accused’s consciousness of the accused’s own guilt, and he has not been convicted yet or found guilty.
Similarly, in cases where an admission of guilt is made the concept of an admission of guilt being made by an accused is one which does not depend at all upon any finding having been made as to the existence of that guilt. Rather, it is said to be evidence of an acknowledgement by the accused of the existence of the accused’s own guilt. In our submissions we refer the Court to the decision of the New South Wales Court of Criminal Appeal in Hura 121 A Crim R 477 to 478. There is discussion by Chief Justice Spigelman of the cases in which a conviction after a plea of guilty will be set aside for miscarriage of justice. On page 478:
A number of circumstances have been identified when the Court will act, notwithstanding a plea of guilty -
There are a number of references - I will not read them all out – where there is reference to the question of whether the plea of guilty is attributable really to a genuine consciousness of guilt on the part of the appellant as to whether the plea is a true admission of guilt. Then at paragraph 36 there is a quotation from Justice Badgery‑Parker in Davies where his Honour said:
“If the plea was into entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty –
Now, the sense in which the term there is used is the ordinary and grammatical meaning, which is the sense in which we submit the term has been employed in section 475(1), none of which requires any curial determination. So all this does is illustrate our contention that a curial determination is not necessary for guilt to be recognised by the law and that, accordingly, where the term “guilt” is used without the accompanying words “verdict of” or “finding of”, if it were necessary “conviction”, then the word “guilt” should be read in its ordinary and natural meaning of the fact or state of having committed the offence.
Can I take the Court to the extrinsic materials upon which we rely to demonstrate more accurately in terms of the Legislation Act, to confirm that the term “guilty” is used in the subsection in its ordinary and natural sense. Your Honours have already been taken to the relevant part of the report written by the commission which Sir Alfred Stephen chaired. It is not insignificant, we submit, that at the same time as at least Sir Alfred Stephen was concerned about the regularity of proceedings taking place in the office of the colonial secretary to determine what advice should be given on a petition for mercy which claimed that the prisoner was not really guilty, Sir James Fitzjames Stephen was writing on the same subject. In appeal book 2 at page 265, there commences an extract from volume 1 of Sir James Fitzjames Stephen’s “A History of the Criminal Law of England”.
After a recitation of the limitations of a writ of error, page 310, a venire de novo on page 311; page 312, “Writs of error are a rare occurrence”, “the Court of Crown Cases Reserved” rarely sat – this is at about point 8 on page 312 of the history, volume 1. Going over to the first full paragraph on page 313, after a reference to an application:
to the Queen through the Secretary of State for the Home Department for a pardon for the person supposed to have been wrongly convicted.
This is one of the greatest defects in our whole system of criminal procedure. To pardon a man on the ground of his innocence is in itself, to say the least, an exceedingly clumsy mode of procedure; but not to insist upon this, it cannot be denied that the system places every one concerned, and especially the Home Secretary and the judge who tried the case (who in practice is always consulted), in a position at once painful and radically wrong, because they are called upon to exercise what really are the highest judicial functions without any of the conditions essential to the due discharge of such functions. They cannot take evidence, they cannot hear arguments, they act in the dark, and cannot explain the reasons of the decision at which they arrive. The evil is notorious, but it is difficult to find a satisfactory remedy. The matter has been the subject of frequent discussion, and it was carefully considered by the Criminal Code Commission of 1878‑9.
It would seem that Sir Alfred Stephen thought that he found the solution in the terms of section 383.
GLEESON CJ: I am not sure about that. What is described there as the “clumsiness of the procedure” continued down to the case of Anderson, Alister and Dunn.
MR BUCHANAN: But it is a concern with the innocent person wrongly convicted because they were innocent, not because of procedural irregularity. Concern, the purpose, the mischief, at which the legislation was directed, we submit, was redressing the stain on the administration of justice of the conviction of a person with the consequences that followed, who in fact was innocent, rather than the conviction of a person who should not have been convicted because the process of trial was defective to the point of nullity or, for that matter, any other irregularity. It is that that we urge be derived from these extrinsic materials, a concern constantly with the question of innocence rather than proper trial.
In this case there is the unusual situation of having the benefit of a contemporaneous explanation. Apart from a second reading speech, which your Honours are already aware of, it is set out in Justice Hope’s judgment of what was said and reference has been made to the fact that it was a concern about people, for example, who have been convicted of rape and might be hanged, and yet it turns out that some of the evidence upon which they were convicted might not be correct or soundly based.
HAYNE J: Can I just take you back a moment to the passage from Stephen that you were taking us to and invite your attention to the foot of page 316 over to the top of 317.
MR BUCHANAN: Yes, your Honour.
HAYNE J: The sentence commencing last on 316:
Cases in which, under some peculiar state of facts, a miscarriage of justice takes place, may sometimes though rarely occur; but when they occur it is under circumstances for which fixed rules of procedure cannot provide.
Experience has shown that the Secretary of State is a better judge –
Is it drawing too long a bow to say that 475 was directed to that kind of case rather than the fresh evidence case that the author was speaking of in the preceding pages of the book?
MR BUCHANAN: Yes, your Honour. To accept that what was contemplated was an executive judgment upon the propriety of procedure adopted in the exercise of judicial power is something which would make someone pause.
HAYNE J: Because the learned author of the report goes on at about point 6 of the page to refer directly to:
The result of the inquiries of the Secretary of State may be to show, not that the convict is clearly innocent, but that the propriety of the conviction is doubtful –
and points to the difficulty, not to say incongruity, of being able only to pardon such a person.
MR BUCHANAN: Yes.
HAYNE J: Now, the problem is well recognised at the time that Stephen is writing. As I say, is it too long a bow to say that 475 still seeks to address that kind of problem even though recognising the very broadaxe that is available for remedying the difficult that is thus identified.
MR BUCHANAN: We say both that in 1883 the reference to propriety of conviction is plainly one to do with innocence. That is to say it might be, as in Alister, Anderson and Dunn, matters were advanced that persuaded Justice Wood that the doubt the subject of the petition was well founded. There was no finding of innocence but that, as the learned Chief Justice pointed out, a pardon followed. It is in that sense that propriety of conviction is, we would say, plainly intended and the very notion that the Executive might sit in judgment upon the exercise of judicial power where the judiciary determined that it would not itself strikes one as, if I might say so, bizarre in those times. Today, yes, ample avenue of appeal, but there are cases where fresh evidence arises and it cannot be received or is not received as to non‑guilt. A tactical decision was made by counsel at trial, and for that reason it is not received on appeal. Nevertheless, it exists.
What if it is cogent? What if a judgment is made that it is cogent? That is the work that section 475 has still to do today just as do the reference appeal powers in the other jurisdictions, albeit under the reference appeal power there is no obstacle to the subject matter of the reference being an irregularity at trial, not that any has been found other than the one to which we have drawn attention in our submissions in England of Podola where a question of unfitness did go to the Court of Criminal Appeal in England under the reference appeal provisions. As we have tried to indicate though, there is, indeed, a full remedy available in England of venire de novo. There was at the time of Podola, and still is, although it is not available today in the Territory.
McHUGH J: You might get some assistance from the contemporary inquiry into Dean that I spoke about this morning.
MR BUCHANAN: Your Honour, I am sorry, yes.
McHUGH J: There was a public outcry about the conduct of the trial judge in Dean and as a result a Royal Commission was set up, notwithstanding the existence of 383 and notwithstanding the fact that, according to Sir Carleton Allen, sober persons and newspapers issued warnings against departures from this prescribed method of appeal. Sir Carlton Allen himself thought the Royal Commission was totally unnecessary and that the 383 procedure was entirely appropriate. He sets out his views in 57 LQR 91.
MR BUCHANAN: Thank you, your Honour. I am afraid I had not chased that up over the adjournment.
GLEESON CJ: Was Royal Commission the proceeding that was used in other Australian jurisdictions that did not have a legislative equivalent of section 475?
MR BUCHANAN: I cannot say so positively, your Honour.
GLEESON CJ: Take the famous South Australian Stewart inquiry conducted by Sir Mellis Napier. That was a Royal Commission, was it not?
MR BUCHANAN: It was, from memory.
GLEESON CJ: And those inquiries into the conviction of Mr McLeod‑Lindsay in New South Wales, were they under section 475?
MR BUCHANAN: That was under 475, but your Honour makes the point thus in South Australia there is a reference appeal provision and yet I cannot say that it was not explored, but as your Honour points out, at the end of the day, the Stewart matter was addressed through a Royal Commission rather than the South Australian reference appeal power.
GLEESON CJ: What was the nature of the inquiry that Justice Slattery conducted into the conviction of Kalajzich?
MR BUCHANAN: Under 475.
GLEESON CJ: Under 475.
MR BUCHANAN: Yes. On both occasions - I think it is right to say there were, I think, two inquiries, but in any event it certainly was under section 475. Every inquiry that we have been able to find, that any party has been able to find, has been into guilt in the sense of not innocence and Anderson, Alister and Dunn stands out because there was some reference to procedural matters and also because Justice Wood was appointed as a Justice of the Peace in terms of the subsection and had for himself then to determine what the doubts or questions were into which he was to inquire, in other words, his own terms of reference.
So that is the interest. Thus the interest in his Honour’s consideration of what a doubt or question amounted to and we say, at the end of the day, thus it is significant to note the terms in which his Honour expressed his conclusion that there was a doubt about guilt. He saw the matters of cross‑examination, the matters of claim, withholding of evidence as being matters that bore upon guilt and we would never try to say that procedural matters cannot have, in any circumstances, bearing upon actual objective guilt. It is just that unfitness to plead does not.
I was taking your Honours to, I think, the criminal law manual that Sir Alfred Stephen and Alexander Oliver wrote as a text on the text of the 1883 statute and appeal book volume 2 commences at page 244. There is an introduction which gives history of the statute, which I will not take the Court to, but it is there, and then at page 249 of the appeal book is set out the commentary to section 383. There the authors say:
This section legalises and regulates inquiries after a prisoner’s conviction – hitherto unauthorizedly conducted (as in England by the Home Secretary,) and necessarily without oath – by way of review of a verdict represented as being a mistaken one –
we emphasise the word “mistaken” –
or in order to ascertain if grounds exist for exercising the power of mitigation. But, since any reference such as is here provided involves often, if not ordinarily, imputations upon the character, or impeachment otherwise of the veracity, of the prosecutor or some other witness, - especially in cases of Rape, where the woman would otherwise be at the mercy of her accuser, - the Proviso here has been introduced. The enactment contemplates, it will be seen, a Report to the Governor by the Judge (if any) directing the inquiry before final decision; and probably a Report on the whole case will be obtained from the Judge who tried the prisoner. The entire enactment is new.
Again, we say that this points clearly to the purpose of the provision being one to address questions of guilt as against innocence rather than the propriety of a finding of guilt, the subject of a ‑ ‑ ‑
McHUGH J: What about the words “by way of review of a verdict”?
MR BUCHANAN: It is a review to see whether the verdict is right or not, and thus the word “mistaken”; is it mistaken?
GLEESON CJ: Yes, but the question when you ask whether a verdict is right is whether the Crown has proved beyond reasonable doubt the guilt of the accused, not the question of whether the accused is guilty.
MR BUCHANAN: That is true, but the verdict is, nevertheless, one of acknowledgment or a finding that the guilt exists. The method by which one arrives at that finding is one that is governed by rules as to burden of proof and the like, but that does not alter the character of the subject of the verdict and, once the verdict has been entered or received, the verdict is one of guilty. It is not referred to in law or common usage as one of having been proven guilty beyond reasonable doubt; it is a verdict of, at the end of the day, the existence of the fact of guilt, we would submit.
In the context of such restricted appeal rights in 1883, it is, we would submit, very difficult to understand how the authors, be they legislators or not, of the provision would have had in mind that what was being provided was a remedy for all trial irregularity of any character, and yet have failed to say something to that effect, to indicate: “You know that case of Bertrand, you know that case of Murphy? We’re changing things”. But they do not say that, there is no suggestion of that; there is no suggestion that anything by way of appeal for irregularity is being provided. Instead, what is contemplated, or the words are consistent with, is a mischief of people being wrongly convicted because they are innocent and a purpose of providing an avenue for such remedy of that as can be provided by a combination of law, section 383, and the exercise of prerogative power.
The absence of such indication on the part of the legislators, on the part of the authors, we say speaks very strongly of a purpose for the provision being confined to the investigation of a doubt or question about objective guilt, the sort of guilt which a person admits, the sort of guilt of which a person might have a consciousness, about which there might subsequently be evidence that is received in a court, but that consciousness already exists and it existed before the trial started.
McHUGH J: But you would have to concede that whatever else the section may mean a reference to guilt is guilt of an offence.
MR BUCHANAN: Yes.
GLEESON CJ: What about a situation which is not unknown where the effect of the new evidence or new circumstances is to produce the consequence, not that it demonstrates the innocence of the accused, but that we can never know whether the accused was guilty or innocent? Take a case, for example, of a kind that has occurred in the Court of Criminal Appeal in which a complainant in a child sexual assault case subsequent to the trial has repeatedly changed her story, telling one group of people that she lied at the trial and then telling the next group of people that interviewed her that she was telling the truth and then reasserting what she said in the first place, and it comes to the Court of Criminal Appeal and the Court of Criminal Appeal says, “In the light of all this we quash the conviction” and they might have added, “and we will never know where the truth lay”.
MR BUCHANAN: Your Honour, if the prisoner claims to be innocent, claims to have been wrongly convicted because innocent, and that is the state of the fresh evidence or new evidence, then highly arguably there is a doubt or question about the guilt of that accused/prisoner and so the provision would have operation. It might have operation according to the rules for proof so as to deal with address, draw a conclusion as to whether the question or doubt is well‑founded, but at the end of the day the doubt or question still is about the existence of that guilt or not, rather than whether the process by which the finding of guilt was achieved was itself defective. That, we say, necessarily follows – inexorably follows from the terms of the statute because it is difficult to see why otherwise the word “guilt” was employed instead of “finding of guilt” or “conviction”.
Reference was made to the decision of this Court in White 4 CLR 152. If I could just take the Court to Justice O’Connor’s judgment commencing at page 164 and the passage to which I would take the Court is at page 165. At about point 6 on the page his Honour said that:
The object of the new provision was to enable the case to be re‑opened where no point had been reserved at the trial, but some facts had come to the notice of the Government –
et cetera. I do not gloss over the words –
indicating that the prisoner might have been improperly convicted –
but your Honours know that this, like all the other cases, was a case of a question of guilt or no guilt, not a question of trial irregularity –
and also to enable the Crown, where the prisoner’s sentence had been served, and he appeared to have been unjustly convicted, to give him the opportunity of having his character cleared by a public proceeding.
Can I just focus upon the words “the opportunity of having his character cleared by a public proceeding”. Patently the public proceeding is the inquiry conducted by the magistrate that is directed by the judge or the Executive. For trial irregularity to be disclosed or highlighted in such an inquiry, there is no consequence for the character of the prisoner. Their character remains just as blackened as it was before the inquiry. If, however, the subject matter of the inquiry is to show that the offence of which they were convicted was not in fact committed or that there is a relevant doubt about it, a well-founded doubt, then that, of course, is the sort of thing that clears a character. In this context your Honours would be aware, of course, that the remedy that we have been discussing that might be exercised by the Executive after a report has been delivered of the grant of a free pardon does not, of course, expunge the conviction. All it does is relieve the prisoner of the consequences of the conviction.
But if, on the other hand, there has been a public proceeding which shows, let us say, clearly that the offence was not committed, then that is the sort of thing which, even though the conviction is still on the record, even though pardon has been granted, nevertheless there has been ventilation of a clear case that they did not in fact commit the offence and thus were not guilty. We say that this is an indication, at least in the mind of Justice O’Connor, that the purpose of the provision was confined to addressing mistaken verdicts rather than improperly obtained verdicts through trial irregularity.
Your Honours, reference has been made, of course, to the fact that this is a remedial provision and the first respondent does not for a minute quarrel with that and to the consequences that follow for construction in the case of ambiguity. We say, however, there is and can be no ambiguity in a word which has only one meaning in all of legal usage and in this provision and that is supported by the extrinsic materials and, accordingly, that there is no work for the liberal construction canon to do in this case. If there were, then, again, the canon of construction is not available to strain impermissibly the language used by the legislature to insert language that the legislature could have used but refrained from using.
CALLINAN J: But, Mr Buchanan, take some of the facts of this case. The appellant tried to adduce fresh evidence in this Court and it was held that he could not. Now, assume that there was fresh evidence which might have had a bearing on his trial or on his conviction or on his guilt, any of those. I suppose he could, after his application here was rejected, seek to reopen the matter perhaps in the criminal appeal court for the ACT. Why might it not be thought that such an application had such poor prospects of success or was so inconvenient that this procedure, the section 475 procedure, was better and should be invoked, or should it first be invoked and then perhaps the matter considered by an appeal court? You see, in that sort of situation, on your submissions, there is no remedy even if valuable fresh evidence were discovered long after the conclusion of all appellate proceedings.
MR BUCHANAN: We say that the appellant does have a remedy. The remedy, if the Executive is so minded, is to grant him a Royal Commission or to amend Part 20.
CALLINAN J: But that assumes your construction of section 475 is correct.
MR BUCHANAN: It does, but your Honour’s contention, with respect, is a concern that injustice is occurring which is not being remedied.
CALLINAN J: No, that there is a question of evidence which is a fit topic for consideration under section 475.
MR BUCHANAN: And if it is evidence as to guilt, then an inquiry under 475 is authorised.
CALLINAN J: But you do not know that. You do not know that for sure until you have had the inquiry.
MR BUCHANAN: One has to go on the materials that are put before the authority which has the power to direct the inquiry.
CALLINAN J: That authority has said that those materials should be tested by directing an inquiry. The Chief Justice has directed an inquiry.
MR BUCHANAN: Yes.
CALLINAN J: And properly so because a question is raised, among other things, as to the evidence bearing upon the guilt. You do not have to answer that question.
MR BUCHANAN: I am sorry, your Honour ‑ ‑ ‑
CALLINAN J: I do not mean my question to you. That question does not have to be answered by the person, the Chief Justice, directing the inquiry. The question is sent off to be considered and answered by somebody else, by the magistrate.
MR BUCHANAN: It is sent off for evidence to be taken so that a view can be formed of the extent to which the doubt or question is well founded on the basis of the evidence taken by the magistrate.
KIRBY J: The Chief Justice’s letter at 307 refers only to his view that a question or doubt arises as to his guilt.
MR BUCHANAN: Yes.
KIRBY J: He does not go on to say, “or a portion of the evidence”.
MR BUCHANAN: That is so. That has been the case.
CALLINAN J: But there may be questions raised which are relevant to portions of the evidence which themselves raise questions as to doubt. For example, an inability because of unfitness to do so to test the evidence.
MR BUCHANAN: Yes.
CALLINAN J: And that may answer both descriptions. By answering the second description of raising a question as to the evidence, it may also inevitably or consequentially raise a question as to guilt. The two need not necessarily be discrete for all purposes.
MR BUCHANAN: No, they need not.
CALLINAN J: And all of that points to a section intended, I would have thought, to have great amplitude.
MR BUCHANAN: Except that the extrinsic materials suggest that the amplitude does not extend so far as to include irregularity in the procedure by which the conviction was obtained, nor does the ‑ ‑ ‑
CALLINAN J: Well, if the irregularity relates to evidence, it may do so. I do not think you can use irregularity without some definition.
MR BUCHANAN: Not when one has a view of the Law Reform Commission report, the second reading speech, the Criminal Law manual. Plainly there the evidence which the legislators had in mind was evidence which went to a question of guilt, and raised a question of guilt and nothing else. Your Honours, essentially those are the submissions that I would make on the question of construction of section 475.
GLEESON CJ: Thank you, Mr Buchanan. Now, can I just get clear the relevance of the other questions? If we are in favour of Mr Grace and against you on the question you have just been arguing, do any of the other questions arise?
MR BUCHANAN: Not in the way that the matter was determined at first instance.
GLEESON CJ: I am not sure why you ‑ ‑ ‑
MR BUCHANAN: That is to say there was no entitlement to judicial review on the merits of the question according to Justice Gray.
GLEESON CJ: And if we upheld his decision on that point, we do not get into questions, for example, about the standing of the DPP.
MR BUCHANAN: That is so, your Honour.
CALLINAN J: That remains to be determined, does it not? What happens to that question if ‑ ‑ ‑
MR BUCHANAN: Nothing.
CALLINAN J: Nothing.
MR BUCHANAN: I mean, if the DPP is not entitled to judicial review because the ‑ ‑ ‑
GLEESON CJ: On the merits.
MR BUCHANAN: ‑ ‑ ‑direction by the former Chief Justice was authorised by the section, well, that is an end of the matter.
GLEESON CJ: Yes, thank you. And that is the point you want to argue, Mr Gageler?
MR GAGELER: …..
GLEESON CJ: Mr Gageler, subject to any submission you might want to make about this procedure to the contrary, it seems to us that a convenient course for us to pursue at this stage may be to hear what the Attorney‑General has to submit on the point that Mr Buchanan has just been dealing with and then we can decide in due course whether it is necessary for us to hear further argument on the point that has occupied your attention.
MR GAGELER: I have nothing to say against that, your Honour.
KIRBY J: Can I just clarify – on the point that you came to argue, that would, would it, arise in the event that Mr Grace were successful and the order of the Full Court is set aside. The decision of Justice Gray is confirmed, the inquiry proceeds, then the issue would arise, would it not, as to whether you have some right to be heard in the inquiry, or does it arise, or is that entirely in the gift of the person conducting the inquiry?
MR GAGELER: It would be a similar question, it would not be the same question.
GLEESON CJ: You are here to argue about the question whether the DPP had standing to seek judicial review of the decision of Justice Miles?
MR GAGELER: There are three questions that I propose to address: one is the power of the DPP under his own Act to commence the proceedings ‑ ‑ ‑
GLEESON CJ: Those proceedings being the proceedings for judicial review?
MR GAGELER: Correct. Secondly, the standing of the DPP under the AD(JR) Act to bring the proceedings; and, thirdly, the question of the exercise of discretion under the AD(JR) Act, given that the proceedings were out of time. Those were the three questions.
GLEESON CJ: Those all being questions that simply would not arise if we thought that Justice Gray was right.
MR GAGELER: That is correct.
KIRBY J: I understand how that is put, but logically is not the question as to your standing something that goes to a suggested flaw in the entire process of the hearing. I am not saying that the course that is suggested is not a sensible one, deal with the substance and, if it is against you, then we do not have to come to your point, but logically, in a sense, the whole issue of your standing is bound up with whether or not there should have been judicial review at all, period.
MR GAGELER: Well, your Honour, questions of standing are sometimes dealt with as preliminary issues, but quite often not, and if we lose on the merits then the question becomes moot.
GLEESON CJ: Yes, thank you. Yes, Mr Johnson.
MR JOHNSON: The third respondent has made submissions in writing, which are before the Court, and I am conscious that I have been called upon to address after Mr Buchanan. In a sense, ordinarily he perhaps would have heard what I had to say orally first. I would start on the basis that the substance of the Attorney-General’s submissions are those as in writing and they essentially put to this Court that the decision of Justice Gray and the dissenting decision of Justice Madgwick are correct insofar as their construction of section 475.
GUMMOW J: Can I ask you a question about your appendix B?
MR JOHNSON: Yes. I was going to come to aspects of appendix B and appendix A for that matter too.
GUMMOW J: I had not realised that section 37 came in so late - only in 1994.
MR JOHNSON: Yes. We have had copied the Australian Capital Territory (Self‑Government) Act 1988 in its current form and copies have been handed up. I was going to take the Court to sections in that Act to explain the position of the Executive and some amendments that have been made which have, it would seem, taken the Governor‑General out of the picture.
GUMMOW J: So 72 has gone, has it?
MR JOHNSON: Yes, section 72 has been repealed.
GUMMOW J: Thank you.
MR JOHNSON: Section 36 of the Australian Capital Territory (Self‑Government) Act 1988 creates the Australian Capital Territory Executive and other provisions within Part V of that Act, 36 onwards, refer to the membership of the Executive. Section 37 provides for the general powers of the Executive.
The Executive has the responsibility of:
(a) governing the Territory with respect to matters specified in Schedule 4;
and moving through to (d):
exercising prerogatives of the Crown so far as they relate to the Executive’s responsibility mentioned in paragraph (a), (b) or (c).
Schedule 4 of the Act contains a long list of items and there is towards the end of the list on page 42 of the Act a number of entries, one described as “Law and Order”, another one “Courts (other than the Magistrates Court and Coroners Court)”, those courts also being included.
KIRBY J: Which section are you referring to, I am sorry?
MR JOHNSON: That is at page 42 within schedule 4 of the Australian Capital Territory (Self‑Government) Act. So the power to be exercised by the Executive as defined includes prerogative of the Crown, so far as they relate to the Executive’s responsibilities as specified relevantly in schedule 4, which would include “Law and Order” and “Courts”.
In addition to that there is within the Crimes Act itself two sections which are reproduced at page 19 of the third respondent’s submissions as part of appendix B, sections 443 and 444 of the Crimes Act. They provide for the Executive to grant “a pardon in respect of an offence” and for the Executive to remit a sentence “in whole or in part”.
KIRBY J: When did they come in? Are they part of the recent amendments or not?
MR JOHNSON: No, they have been in the Act since 1991. Paragraph 12 on page 19 of the third respondent’s submissions in appendix B explains those sections. Those two sections were inserted in 1991 at a time prior to the enactment of section 37(d) of the Self‑Government Act, apparently based on the assumption that there was no power in the Executive to pardon offenders, the assumption was consistent with the Self‑Government Act which assumes its prerogative powers would remain with the Governor‑General, section 72. However, section 72 was repealed when section 37(d) was enacted and thus the statutory scheme now includes section 37(d) and also the two sections, 443 and 444, of the Crimes Act.
GLEESON CJ: Does this Executive act on advice, or is it self‑advised?
MR JOHNSON: It is self‑advised is the answer to that.
KIRBY J: Section 7 is also relevant, of the Self‑Government Act, because it purports to create the Capital Territory by Act of the Federal Parliament “as a body politic under the Crown”, but as I understand it there is no personal representative of the Crown in the Australian Capital Territory.
MR JOHNSON: That is so, yes.
KIRBY J: The Governor‑General’s former role in that respect is now removed, is that so?
MR JOHNSON: Yes, that is correct. Insofar as sections 443 and 444 refer to the Executive, there is within the Legislation Act 2001, an ACT statute, meanings of commonly used words and expressions and “Executive” is said to mean the Australian Capital Territory Executive.
GLEESON CJ: Is this a pro tanto repeal of section 61 of the Constitution?
MR JOHNSON: I hope not. I have not turned my mind to that provision of the Constitution for the purpose of considering these issues, your Honour, but it puts in place, it would seem, via a Commonwealth statute, a scheme whereby an Executive is created by the Commonwealth statute and the Governor‑General certainly, insofar as there was a statutory reference to him before the section 72, that reference has been removed.
KIRBY J: What constitutes the legislature of the Capital Territory? Is it the Assembly together with the Crown?
MR JOHNSON: It is the Assembly which is ‑ ‑ ‑
GUMMOW J: Who assents to the Bills? It does not happen, does it?
MR JOHNSON: I am instructed that nobody does that. They are notified, having been made.
GLEESON CJ: Who appoints the judges?
MR JOHNSON: The ACT Executive appoints the judges.
McHUGH J: The ACT Executive cannot remove them though, can they? They have to go through some special procedure.
MR JOHNSON: Within the Australian Capital Territory (Self‑Government) Act section 48A and following deal with the judiciary. There is provision in section 48C which refers to “a judicial commission”, and section 48D relates to “Removal of a judicial officer from office”.
KIRBY J: Who in the Capital Territory would have the power to exercise the prerogative, as it is called, of mercy of the Crown?
MR JOHNSON: It would be exercised by the Australian Capital Territory Executive as created by section 36 and as made up in section 39:
The members of the Executive are the Chief Minister and such other Ministers as are appointed by the Chief Minister.
KIRBY J: So, unlike other parts of the Commonwealth, there is not a recommendation to the Queen’s representative; it is simply purportedly done by the Executive without any reference to any representative of the Crown, Governor‑General or anyone else?
MR JOHNSON: That is so. If there was a valid section 475 inquiry, one would anticipate that following the depositions being taken by the magistrate they would be provided to the judge who appointed the inquiry, who would report in turn to the Executive. That report may contain conclusions and recommendations in accordance with usual practice in these circumstances.
KIRBY J: If the Federal Parliament can enact in this way why can it not enact something of a more general character for the whole of the Commonwealth in this way?
MR JOHNSON: I suspect that my instructions would not permit me to answer that, acting for the limited entity that I do in these proceedings.
KIRBY J: This is a federal Act. It is not an ACT Act.
MR JOHNSON: No, it is a federal.
GUMMOW J: The Governor‑General still has a role under section 16 to dissolve and under section 35 to disallow. That is still so, is it not?
MR JOHNSON: Yes, there is still a function.
KIRBY J: This is all purportedly done under section 122 of the territories power and any incidental powers. That is another indication of how misconceived it is to disjoin the territories power from the rest of the Constitution.
McHUGH J: There is specific power in section 557 of the Crimes Act for the Executive to grant pardons or…..penalties.
MR JOHNSON: Yes. Section 557 has been renumbered now as 443. It is the same provision. It is an express power to grant a pardon, those provisions having been enacted before section 37(d) was, but they remain n the statute books and they are there as an express power.
GLEESON CJ: Even so, in the absence of legislation empowering a matter to be sent back again to a Court of Criminal Appeal with the potential to quash a conviction and perhaps order a new trial, the 475 procedure still involves the problem that has been recognised for more than a century, which is the incongruity of providing as the only remedy for some person who claims to have been unjustly convicted, a pardon.
MR JOHNSON: It is true that section 475 in this case would lead, even if there were a favourable report, the most beneficial outcome for a petitioner in these circumstances would be the grant of a pardon, either conditional or unconditional, or remission of sentence. The use of the word “remedy” is perhaps not entirely apt in that remedy in the sense understood by the law as a more complete and effective response to the problem. The use of the prerogative powers of pardon or remission in the end provide some amelioration in a sense of the position of the petitioner, but in the absence of some statutory framework that allows reference to a court with an ability to quash, it can never be a remedy as such.
Therefore, one has a situation where one acknowledges that there is not a “remedy”. There is no power to order a new trial but one has a situation where, if the matter has reached the end of the line, there is no court to which the matter can go, there is a matter which triggers a section 475 inquiry and then given the broad powers which are available with respect to the exercise of the prerogative, I mean broad powers in the sense of unrestricted circumstances in which they may be exercised, there may be an ability to ameliorate to an extent the position of the petitioner.
GLEESON CJ: This does not necessarily affect your principal argument.
MR JOHNSON: No.
GLEESON CJ: Because this problem with the section 475 scheme, as I say, has been obvious to people for more than a century.
MR JOHNSON: Yes.
GLEESON CJ: It is the problem that arises, for example, when after a person has exhausted all appellate processes unsuccessfully, somebody else comes forward and confesses to the crime.
MR JOHNSON: Yes. Such a case occurred in New South Wales in the last 10 years involving Mr Pohl who had been convicted of murder and someone else came forward some years later and confessed. I think there was a section 475 inquiry, but it occurred after the mechanism was introduced in New South Wales in 1993 that allowed the matter to be referred back to the court so that the conviction could be quashed. But
absent that sort of provision Mr Pohl would be in a position where he could at best receive an unconditional pardon and in the absence of some enactment that is where it would end.
So the issue raised by your Honour is fairly and squarely there and has been for many years. The way in which the section 475 power has been referred to in some writings has been the acknowledgement that it is a type of fail‑safe device. That is a term that was used by Justice Kirby in the Varley Case at pages 37D and again at 41B.
KIRBY J: If it is only failsafe within its own terms.
MR JOHNSON: It is, that is right.
KIRBY J: It cannot save more than its terms allow and in those respects it fails.
MR JOHNSON: That is true, but the argument that the third respondent has put is that its own terms are broad is, of course, contrary to the position put by the first respondent and that such a ‑ ‑ ‑
KIRBY J: But why do you say they did not say “conviction” instead of “guilt”? Why did they take particular aspects of the conviction instead of just saying whether a doubt had arisen as to the conviction, given that that word was used in the same sentence? That is the issue that is puzzling.
MR JOHNSON: The word was used in the same sentence because of the temporal aspects of where there has been a conviction ‑ ‑ ‑
KIRBY J: They said three aspects of conviction, and it is the guilt, the mitigating circumstances and the caution of the evidence, instead of just saying, as it would have been easier and more economical of words, “Where after the conviction of the prisoner any doubt arises as to the conviction”, because that is essentially how you ask us to read it.
MR JOHNSON: Or “guilt” meaning finding of guilt. I mean, what we would put is doubt or question as to guilt and the word “question” is important, firstly, because it is there and throws more meaning on the section; and secondly, because it happens to be the word that Chief Justice Miles used in this case. It is the question as to guilt which has led to this inquiry.
GLEESON CJ: There is no doubt about the conviction, is there?
MR JOHNSON: No.
GLEESON CJ: It is not as though there are some jurors who are jumping up and down saying “We didn’t agree with that verdict”.
MR JOHNSON: There is no doubt there was a conviction. Then after the appeal process is exhausted, this issue is there. The submission which the third respondent puts is that the word “guilt” in section 475(1) means guilt duly established by the criminal law. It does not mean other forms of guilt which are referred to in paragraph 5 of the third respondent’s written submissions. It is clearly not dealing with guilt reached in some scientific sense, let alone some type of philosophical sense. It is talking about guilt in the context of a finding of guilt in a criminal justice system to which this very Act applies.
GLEESON CJ: Now, Mr Buchanan submits that you cannot permit section 475 to be construed in a way that would cover any form of irregularity. How do you respond to that?
MR JOHNSON: The response to that is section 475 can extend to any form of irregularity. Whether in the particular circumstances a case may be made out for an inquiry would depend upon the nature of the irregularity. The question of whether a factual inquiry would throw light on the irregularity so as to ultimately assist in informing the Executive as to the exercise of such powers as it may have to do what is just, and that the section itself is capable of accommodating doubts or questions arising from procedural irregularities. The way we seek to put it in the written submissions is that it is a broad power, that ultimately the control upon it is the discretion, the discretion by the judge to whom the application may be made.
It may be said there is a procedural irregularity but of a fairly passing type or a procedural irregularity as to which no useful light can be shed by way of an inquiry conducted by a magistrate. These are matters of judgment in the exercise of discretion as to whether to direct an inquiry and these are matters which we have sought to put in paragraph 40 of our written outline, that the real controls on the use of this section are not in narrowing the pathway to it by having a narrow door confined only to issues of guilt versus innocence in the sense of did the person do it, but allowing a broader failsafe or safety valve-type provision whereby if doubts or questions are raised as to guilt, guilt is found, a person may seek an inquiry. But where it relates to a procedural irregularity, how serious is it, will a factual investigation assist, matters of that sort.
To take the example that has been raised by your Honour the Chief Justice and, indeed, was one of the examples that were posed in our written submission at paragraph 41, take a situation where, after the appeal process is exhausted, credible evidence is suggested that there was jury tampering – perhaps not by someone at the behest of the accused. Now, is that issue to be left uninvestigated? To say that one could have a Royal Commission into it or some ‑ ‑ ‑
KIRBY J: No, but that would be a crime. There would be a crime, would there not, that could be investigated and the subject of whether there has been tampering or interference with the jury, they would be offences. So you can investigate them and the argument is that it is relevant to guilt, because if the jury is contaminated, by definition the person asking for the inquiry has been convicted, an issue arises as to the guilt of the accused.
MR JOHNSON: There is no reason though why the process that can be undertaken there cannot be undertaken through a section 475 inquiry, we would submit. It may be necessary to determine whether there is credible evidence of such tampering. There would be the ability to take such evidence on oath.
KIRBY J: Those issues do arise in Courts of Criminal Appeal, of course, in challenge to the conviction.
MR JOHNSON: They do. For the purpose of the present debate though, the assumption is that the information has only become available after appeal rights have been exhausted, therefore one is left with a conviction, no access to appeal courts, what can be done. Now, the submission that we would put is that the cases that have been referred to as late 19th century cases, do throw some light on this. Bertrand’s Case itself was a case where there was a procedural irregularity. It is referred to in paragraph 35 of our submissions on page 9, whereby at a second trial, at a retrial, it proceeded by way of reading the judge’s notes of the witness’ evidence in the first trial rather than having the witness give the evidence viva voce.
Now, ultimately, the Privy Council held that there was no form of appeal or review and the conviction must stand, but the Privy Council indicated, in the passage quoted in paragraph 35:
They have no doubt that –
that is their Lordships have no doubt that –
upon an application on behalf of the Respondent, which they recommend to be made to the proper authorities, such weight will be given to these remarks as they may be found to deserve.”
One can see there that the use of the prerogative power was seen as a way of dealing with a procedural problem. In Mr Bertrand’s case, as it turns out according to the work of his Honour Judge Woods at page 400, the death penalty was commuted to penal servitude for life by the Executive Council, so there was an exercise of the prerogative power in Mr Bertrand’s favour.
KIRBY J: Correction, it was commuted by the Governor in the name of the Queen on the advice of the Executive Council. It is only in your polity that you can do it yourself, so you say.
MR JOHNSON: I accept that correction. In the case of Murphy referred to in paragraph 36, there the problem had been the:
jurors had been allowed to read newspaper reports of the trial prior to delivering their verdict. Once again the Privy Council –
said that this issue would not be the subject of an overturning of the conviction, but it was said in the passage repeated in paragraph 36:
“If irregularity occurs in the conduct of a trial not constituting a ground for treating the verdict as a nullity, the remedy to prevent a failure of justice is by application to the authority with whom rests the discretion either of executing the law or commuting the sentence. As there was, in the opinion of the Court below, irregularity in the trial of the Respondent sufficient to vacate the judgment, their Lordships have no doubt that, upon proper application on behalf of the respondent, which they recommend to be made, such weight will be given to these remarks as they appear to deserve.”
I am not in a position to tell the Court what happened to Mr Murphy after that, but it is clear that the Privy Council were of the view that a remedy, using the word in its broad sense, for Mr Murphy’s position was the use of the prerogative power even though the difficulty that had arisen was one of a procedural irregularity.
These, of course, are cases dealing with the use of the prerogative power. The point I seek to make is the prerogative power has been said to be available and has been utilised in circumstances arising from procedural irregularity in criminal trials where, on the face of the judgments at least, there is no suggestion that it is a guilt versus innocence situation.
One then says if the purpose of section 475 is to inform the Executive so that it can give consideration to the exercise of such powers as it has available to it, and to exercise those powers as appears just, then there is no reason for confining the construction of the opening words in section 475. The submission I would put is that Justice Madgwick was correct in saying that the ordinary meaning of the words in section 475 do accommodate the submission being put by the third respondent, and indeed the appellant in this case.
Justice Madgwick also made the point that the language of this provision is in some respects somewhat quaint and that a close examination of the words is not necessarily the appropriate approach to determining its meaning. One obviously has to look at the words, but the words themselves do not provide the answer and the lack of absolute precision in drafting, in Justice Madgwick’s words, and this is repeated in paragraph 10 of the third respondent’s submissions:
“exquisite attention to pinpoint accuracy in expressing legal concepts and painstaking expungement of ambiguity is demonstrably not the style of the section”.
Nor, I would submit, on a proper understanding was it the purpose of the section because the purpose of the section was ultimately to provide the source of the Executive obtaining information for the purpose of it exercising its prerogative powers.
CALLINAN J: Mr Johnson, can I just ask you another question. In paragraph 33 of your submissions you set out what you say the Executive can do following an inquiry. Does the Director of Public Prosecutions Act 1990 take away the prerogative of the Attorney‑General to bring and pursue proceedings?
MR JOHNSON: I am sorry, does it take away the?
CALLINAN J: Yes, is it a Code and does it confer the power to bring criminal proceedings and to prosecute them to their conclusion exclusively? Is that power conferred exclusively upon the Director? I will tell you why I ask that, assuming that there were an inquiry which showed that there had been a serious problem about the trial, the applicant or the convicted person might then apply to the appeal court for an extension of time within which to appeal, in effect, to reopen the appeal, and to bring forward the matters that have been disclosed, assuming they can be received as fresh evidence. I think the decisions of this Court hold that intermediate courts can generally do that. It depends on the statute but they can generally do that. Could the Attorney‑General consent to the allowance of the appeal – the extension of time and the allowance of the appeal?
KIRBY J: Section 21 of the Director of Public Prosecutions Act seems to say that:
Nothing in the Act is taken to affect the performance or exercise by the Attorney‑General of a function or power conferred . . . by or under a law of the Territory.
Query whether it is under the prerogative powers of the Crown.
CALLINAN J: It may be a question because under sections 19 and 20, although the Attorney‑General can require consultations and give directions to the Director – the Attorney‑General cannot do that in relation to any specific matter – but it may be – I do not know – that the Attorney‑General could still participate in the criminal proceedings, or certainly in an appeal in relation to them, and consent, perhaps even over the Director’s objections, because you are at odds here, to an allowance of the appeal and the extension of time, a matter which the Court might think influential.
MR JOHNSON: Section 21 certainly maintains a function for the Attorney‑General, in certain circumstances.
KIRBY J: But only so far as the law of the Territory provides. It is not at large and the thrust of it seems to be – and that is, I think, common to DPP Acts – to keep the Attorney‑General out of or, as it is sometimes put, to save the Attorney‑General from the embarrassment of sometimes being involved in criminal cases.
MR JOHNSON: Yes.
CALLINAN J: The independence of the Director’s office ‑ ‑ ‑
MR JOHNSON: Yes. The other provision is section 33 which perhaps does not bear greatly on the present issue but I should draw attention to it:
Nothing in this Act shall be taken to affect the right of a person to institute general proceedings.
KIRBY J: That is to say, private prosecutions, I suppose.
MR JOHNSON: Yes. I have not given specific consideration to the issue that has been raised by your Honour Justice Callinan. If it was a matter that the Court would seek further assistance on, I would seek an opportunity just to give it some thought and ‑ ‑ ‑
CALLINAN J: Perhaps you could give us a written note on it if that is convenient.
MR JOHNSON: Yes. There has been reference to what particular detriments may arise from a person if they were not fit to plead but a trial continued. I should draw attention to a portion of the judgment of Justice Gray at appeal book 214. Paragraph 34 of his Honour’s judgment, observed:
Mr Eastman, in his submissions, refers to some consequences which may flow from an accused being unfit to plead. His submission refers to the following:
(a) exculpatory evidence may not be brought forward.
(b) improper evidence may be admitted unchallenged.
(c) Other erroneous rulings of the Judge may go unchallenged.
(d) Witnesses may be inadequately cross‑examined, or not at all.
(e) The accused’s demeanour may negatively and unfairly influence the jury.
I draw attention to that because the Court has been asking as to whether there were any specific areas raised. That has certainly been indicated in the submission, although I do not understand for the present time that it has been said that it relates to any particular witnesses, but it certainly provides apparently a degree of particularisation at least of ways in which a question as to fitness to plead may impact upon the trial itself.
I have already mentioned that Chief Justice Miles specifically directed this inquiry by reference to what was said to be a question arising as to the finding of guilt. The Court has examined the letter from the Chief Justice to the Chief Magistrate, which is at page 307 in the appeal book, but there is some further articulation – and this is in a portion that is reproduced in the judgment of the Full Court but a little hard to read in the appeal book. The original portion is at page 61 of the appeal book in the proceedings of 7 August 2001 before Chief Justice Miles. At the bottom of page 61 the Chief Justice said:
However in the administration of criminal justice, and in the criminal law, the term “guilt” is often used not to refer to objective guilt but to a finding of guilt. If a liberal approach is taken to s 475, then it is not difficult to construe the section to cover questions and doubts as to a finding of guilt. If a person has been found guilty when an issue as to that person’s fitness to plead has arisen at the trial but has not been determined according to law, then it follows that a question arises as to the finding of guilt. On the material before me the present application raises the question whether that issue arose at the trial of David Harold Eastman.
And his Honour referred again at paragraphs 11 and 12 to arguments that had been advanced about the lack of remedy or lack of appropriate remedy, and his Honour observed at paragraph 12:
It is enough to say that an Inquiry would not be necessarily futile –
and that is having regard to the breadth of the prerogative of mercy –
and that there is a prospect that it might on the one hand go to expose a serious injustice or on the other it might go to clear any doubt and resolve any question as to David Harold Eastman’s guilt as contemplated by s 475.
I mention that in particular because it was indicated earlier by Justice McHugh in particular that it is a question as to guilt as well. It seems, it is submitted by the third respondent, to involve quite a broad concept. This is not a narrow provision, it is a provision that allows doubts or questions as to guilt found by a criminal court to be the subject of inquiry and report to the Executive.
I drew the Court’s attention to the use of the word “failsafe” in the Varley Case by Justice Kirby and, of course, I am conscious of the fact that the question is how wide or how large is the failsafe device. But it is useful to note in other writings in the field with respect to the prerogative of mercy - and by way of example there is an extract, copies of which have been handed up, of an article by B.V. Harris, “Judicial Review of the Prerogative of Mercy”, in (1991) PL 386 and it is an extract of the first two pages of the article. I wish to take the Court to a portion on 388 about a third of the way down the page, where the author says:
The prerogative of mercy exists as a safety valve where the criminal trial and appeal system produces a result which the public interest cannot sustain.
Interestingly enough, toward the bottom of that page too, the author says:
Further, the prerogative of mercy may be exercised where the public interest would be better served by having a person relieved from the consequences of a conviction, even though the conviction was properly obtained, or could be properly obtained in the future.
Certain examples are provided. All of this, it is submitted, is to demonstrate the width of the power which is the ultimate purpose for which an inquiry and report is to take place under section 475.
The Court has been taken to the report of Justice Wood in the Anderson inquiry. The submission that the third respondent would put is that, fairly read, Justice Wood was looking at a series of issues which arose with respect to that trial, a number of which were freestanding issues which related to suggested failures in the trial process. Take, for example, the suggestion that the Crown Prosecutor had cross‑examined the accused in a certain way which constituted a defect in the trial process. His Honour ultimately reported that a defect in the trial process was not demonstrated. That involved, the third respondent submits, an examination by his Honour, as a Justice of the Peace, of course, inquiring for the purpose of section 475 of what was said to be a procedural irregularity in the trial.
Now, true it is it is a decision, effectively, of a judge who happened to be a Justice of the Peace but, in my submission, it is the closest thing to authority on point and it is authority which, it is submitted, supports the argument of the third respondent. Certainly, his Honour Justice Wood approached the question and there is an extract in paragraph 28 of the third respondent’s submissions. His Honour said:
guilt has the meaning given to it in the trial process, that is, guilt established beyond reasonable doubt –
His Honour was certainly examining a number of issues in the trial. True it is a number of them related to the credibility of the principal witness Seary, the credibility of alleged admissions made to police which were issues which on one view of it involved the question of guilt or innocence, but there were procedural irregularities examined and reported on as in effect stand‑alone issues. The submission the third respondent would put is that the report of Justice Wood is useful authority for an understanding of how a report intended for the Executive, in that case the Governor, would examine issues of that sort; not merely to see how those issues interrelate with other matters, for example, how people may have been cross‑examined or whether material that was not previously disclosed may throw adverse light on the character or credit of a witness such as Seary, but stand‑alone procedural irregularity issues. The submission that we would put is that the report is helpful. The Full Court regarded it as being not helpful. The third respondent submits that it assists the resolution of the present problem in a manner favourable to the third respondent.
The Lindsay report and the Kalajzich report referred to in paragraph 29, it is true that Justice Loveday and Justice Slattery adopted the passage from the Anderson report with respect to the concept of guilt, but it is also true that there was no procedural irregularity issue in the Lindsay or Kalajzich Cases. They were cases where it was suggested there were doubts as to guilt in the guilt or innocence sense that the DPP advocates.
The DPP, the first respondent, has placed considerable emphasis on the extrinsic material. The submission of the third respondent is that that material must be read with some caution. Firstly, it is a course of some vintage ‑ Justice Madgwick refers to that. Secondly, can it be said that the material constitutes a purported exhaustive statement of the circumstances in which the then section 383 might operate. The third respondent said that is taking it too far. It clearly had a focus on a particular class of cases, namely rape cases. There is no doubt the section goes far beyond that class of case. Therefore, one is not looking at a second reading speech or indeed extrinsic material where one can divine by a process of identifying a purported exhaustive listing of items that the absence of procedural irregularity is telling.
In any event, as members of the Court have identified when the first respondent took the Court to portions of that material, there are some parts of it which tend to not support the first respondent’s contention. So it is not, in my submission, a substantial foundation upon which the argument advanced by the first respondent can rely.
The Court asked a question as to whether there could be a section 475 inquiry in circumstances where the convicted person had died. I think Justice Hayne raised this question. There is a case Sen v The Queen (1991) 30 FCR 173, copies of which have been handed up, a decision of the Full Federal Court. It is really the last page only which is relevant, page 176. The court there said:
There may be cases in which, whether because of the discovery of fresh evidence or for other reasons, doubt arises as to the guilt of a person who is convicted of a crime and who dies before his appeal against conviction is heard. It would seem that s 476 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory might well provide a means by which the correctness of such a conviction may be examined and so afford a means by which a deceased’s family may have the correctness of a conviction considered. But we do not think the correctness of a conviction may be examined by prosecuting an appeal which has abated.
There is also in the same area authority where applications have been made for, in effect, a posthumous pardon. One case of that type which is referred to at page 18 of the third respondent’s submissions, paragraph 6 of appendix B, is the well‑known case of Bentley in the United Kingdom. He had been convicted of murder and executed many years ago.
KIRBY J: What is the name of the case?
MR JOHNSON: It is called R v Secretary of State for Home Department; Ex parte Bentley [1994] QB 349. There is an extract from it at the foot of page 18 of the third respondent’s submissions. Bentley was a case where, the accused having been executed many years before, the question arose as to whether there could be a grant of a posthumous pardon and in the course of that case the English court observed in a quote that is set out at the top of page 19:
it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can ‑ ‑ ‑
GUMMOW J: Where is this set out?
HEYDON J: I think your numbering is wrong, Mr Johnson. It is the bottom of 17 and the top of 18 of ours.
MR JOHNSON: I am sorry. I am told it is in fact page 17. There is a problem with my pagination.
GUMMOW J: Yes, paragraph 6, appendix B.
MR JOHNSON: Yes, paragraph 6, appendix B. It is the quote:
it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of a particular case. We would adopt the language used by the Court of Appeal in New Zealand in Burt v Governor‑General (1992) 3 NZLR 672, 681: “The prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour.” It is now a constitutional safeguard against mistakes.
GUMMOW J: What is the force of the word “constitutional” in that sentence?
MR JOHNSON: I think that goes back to the preceding paragraph 5 in Burt’s Case where that phrase appears.
GUMMOW J: Yes, that is right.
MR JOHNSON: It has become an integral element in the criminal justice.
KIRBY J: It is being used in a New Zealand and English‑type context. The sort of constitutional law we learnt in law school before we got to the real matter of our Constitution.
MR JOHNSON: Yes. I do not think it is being used in any statutory constitutional sense but in the broader sense of the constitutional safeguard and that the sentence from Burt’s Case ‑ ‑ ‑
KIRBY J: They bandy it around in New Zealand a lot now, “constitutional”.
GLEESON CJ: It indicates, does it not, in this context, concepts like mercy and pardon do not necessarily involve forgiveness?
MR JOHNSON: That is true.
GLEESON CJ: That is say, they do not necessarily depend upon an assumption of guilt.
MR JOHNSON: That is so.
KIRBY J: But it would be an odd outcome of this case to exercise the prerogative of mercy; it would be an incongruous outcome unless after a certain period of time one took the view - and medical reports - that that would be both a safe and proper course. This is the incongruity that Mr Buchanan relies on, that it does not seem apt to the solution that the section provides.
MR JOHNSON: I am not submitting, of course, that the power of pardon would be exercised in this case but the point I would seek to make is that historically the concept of pardon often has been historically an incongruous means of dealing with that particular problem.
GLEESON CJ: It would be at least an incongruous in the present case if the case was one of a kind which Mr Buchanan would say section 474 does cover. That is to say, if we had another man coming forward and confessing to the murder of Detective Sergeant Winchester, it would be incongruous to pardon Mr Eastman.
MR JOHNSON: There are, of course, different sorts of pardons. There are free pardons, there are conditional pardons, there is the remission of sentence, there are a range of options. Again, I am not suggesting they would be applied but one is talking here ‑ ‑ ‑
HAYNE J: The kind of incongruity is illustrated by footnote 1 at page 270 of the appeal book, the reference to a case of Smethurst. Smethurst’s Case is extracted extensively in the appeal book from 273 through to 286, where Smethurst was pardoned in circumstances where a prominent surgeon formed the view that there was some doubt about whether Smethurst had poisoned the victim.
KIRBY J: It is an interesting essay. It says on page 274:
Married people usually treat each other with external decency, good humour, and cordiality –
It is very much 19th century language.
MR JOHNSON: The submissions the third respondent puts is what might be said to be the absence of a neat, remedial solution to the present problem is nothing new in this area in that the nature of the prerogative power exercised at times and described as failsafe for other circumstances involved ‑ ‑ ‑
KIRBY J: But you have to say this lies down the track. All this provides for is advice to the Executive Government. What then happens, if anything, depends on (a) the outcome; and (b) what would be the absolute solution to that outcome. As Chamberlain shows, in the Northern Territory one particular course was adopted, as a New Zealand footnote shows elsewhere, there was a statutory Act passed which pardoned a person. Another possibility would be a general law with retrospective operation that says where a question arises after a trial as to the fitness to plead, that is a matter that can be passed upon by a Court of Criminal Appeal or Court of Appeal, notwithstanding the fact that the issue has already been otherwise determined by such court. There are lots of things and, as Justice Callinan raises, the possibility of re‑opening the proceedings in the Court of Criminal Appeal, although I think Postiglione in this Court rather suggested that you may not be able to that once it is functus officio; I am not sure. There are lots of possibilities; it is a couple of steps removed.
MR JOHNSON: Yes, and the point the third respondent seeks to make is that to use the range of possibilities, the range of powers that might be exercised to in some way read down the introductory words of section 475 is inappropriate and essentially unhelpful and, if anything, the nature of the decision by the Executive suggests an unlimited number of circumstances, subject to any limits dictated or demanded by the reading of the introductory words to section 475. The third respondent submits those words should not be read in the way that the first respondent submits.
Could I take the Court to paragraph 13(e) of the third respondent’s submission. There are a number of cases which are referred to here and most of these speak for themselves. The case of R v Grand and Jones on page 16 of the submissions. In the Grand and Jones Case Acting Chief Justice Stephen said that if there was a case where wholly inadmissible evidence had been admitted but the question was not reserved the Court might express its opinion “not for the purpose of quashing the conviction, but for the consideration of the Executive”. One adds that case to the cases of Murphy and Bertrand to which reference has already been made.
GLEESON CJ: Yes.
MR JOHNSON: There was a question asked by Justice McHugh about the Dean Case. I think, since lunch, your Honour has clearly found further references to it, but there is a chapter in his Honour Judge Wood’s book, commencing at page 408, about the Dean Case, which includes reference to the use of the Royal Commission. It would seem that his death penalty – there was a reprieve before the Royal Commission and then after the Royal Commission a free pardon. Ultimately, the third respondent submits that
that particular case does not throw any particular light on the construction of section 383, as it then was. Unless there was some other issue ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Johnson. Yes, Mr Grace.
MR GRACE: Your Honours may be assisted by referring to a decision of the Full Federal Court in the first appeal of Eastman (1997) 76 FCR 9 just for the purposes of giving examples as to how the conduct of the trial may have been impacted by the appellant’s unfitness to plead. Could I take your Honours to page 82. Ground 6 of the appeal to the Full Federal Court concerned the directions that his Honour had given to the jury in relation to Browne v Dunn and the infringement of the rule in Browne v Dunn by the appellant in failing to cross‑examine witnesses who had been called for the prosecution.
The history of the engagement, disengagement, the sacking, re‑engagement and so on by the appellant of his legal practitioners is set out elsewhere in the judgment. But just to give your Honours a practical example, if you turn to page 84D, and after their Honours in the Federal Court recited the fact that the appellant had refused the opportunity to cross‑examine certain crucial police witnesses, their Honours said this:
The appellant made a similar response in relation to the evidence of Sergeant Case, Dr Richard Eggleton, Detective Sergeant Robin Bush, Mr Ian Drinnan, Mr John Crossley, Sergeant David Ashurst, Mr Nelipa when he was recalled, Detective Constable Colin Jackson and Detective Constable Phillip Thomson.
So there was a large number of witnesses that were not cross-examined at all and that as a result of Mr Eastman giving evidence on his own behalf at a later date and raising matters that were properly matters that should have been put by way of cross‑examination to these witnesses, subjected him to that direction in accordance with the rule of Browne v Dunn. Now, that is a practical example of how his unfitness to plead may have impacted upon the outcome of the trial.
KIRBY J: Of course, that is one view. Another view is that it was manipulative and that the inquiry would lead to a conclusion that there was no mental incapacity relevant to the fitness to plead.
MR GRACE: Yes, but given the existence of the medical reports, the psychiatric reports, and other material, there is, in our submission, a question ‑ ‑ ‑
GLEESON CJ: And even if the inquiry led to a resolution of that question in the manner suggested by Justice Kirby, that could be a very useful public purpose.
MR GRACE: Yes.
GLEESON CJ: The 475 inquiry into the conviction of Mr Kalajzich led to the conclusion that in the opinion of the inquirer he was certainly guilty.
MR GRACE: Yes, and that resolves any feelings of unease or disquiet that the public might have, and I think that is a matter Justice Hayne raised this morning as to the purposes of a 475 inquiry.
KIRBY J: This is where Mr Buchanan says with his black‑letter hat on, you are simply slipping in to what is a desirable matter, desirable interpretation, not what the section says.
MR GRACE: Our submission principally is this, that the word “guilt” means finding of guilt. We say that there is support for that conclusion in what Mr Justice Wood concluded in relation to the Alister Inquiry. Your Honours have had me read to you this morning where his Honour in his report took the view that “guilt” had the meaning given to it in the trial process, that is guilt established beyond reasonable doubt. In his ultimate conclusion that particular meaning is borne out because – if I could take your Honours to the first respondent’s further materials. At page 451 in the overall conclusion that his Honour reached, he formed the conclusion, having regard to the assessment of Seary’s general reliability, that – I will read it at the bottom of page 451:
I am satisfied that an inference exists that Seary manipulated the Petitioners (and the police), and carefully caused the events to be so ordered as to present an apparently strong case against them. I form this conclusion, having regard to my assessment of his general reliability and his evidence concerning the Yagoona affair, notwithstanding the strength of the independent evidence. While I am unable to say that this is the correct inference to be drawn, it is sufficient for my inquiry to state that it is a rational inference that cannot be excluded.
Now, in so saying, what his Honour was doing was adopting the test that a Court of Criminal Appeal would adopt, that is, could the jury reasonably exclude a rational inference consistent with innocence? That is why his Honour came to the conclusion that a doubt remains as to the guilt of those particular persons.
Now, there is further support in the additional materials which my learned friend, Mr Buchanan, seemed to gloss over until questioned by your Honour Justice McHugh on that point. That concerned the issue involving Sir Alfred Stephen’s summary of the impact of section 383 in his short annotations and the words “verdict of the jury” were prominent in those annotations. That gives some support, and strong support, we would submit, to the contention that the word “guilt” must mean finding of guilt.
Further support might be found in the common form criminal appeal provisions existing throughout Australia. Could I remind your Honours that the common form appeal provisions provide for appeals against conviction, but that the opinion of the Court of Criminal Appeal must be that the verdict of the jury should be set aside on the ground that it is unreasonable or so on, including on any ground that there has been miscarriage of justice. So, it is the verdict of the jury that has to be satisfied, and that dichotomy between verdict of the jury, which, we submit, is the same as saying finding of guilt, is the same dichotomy that exists in section 475 and is consistent with it.
Finally, if I could refer your Honours to the decision of this Court in Maxwell (1996) 184 CLR 501. There in a joint judgment, Justice Dawson and your Honour Justice McHugh commented upon the question of what amounted to a conviction. At page 507 at point 6 on the page their Honours said:
The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur:
“The word ‘conviction’ is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.”
Hence, the difference, we would submit, in the terminology used possibly in section 475 because at the time of the drafting of that section there was decisions such as Burgess v Boetefeur which created the distinction. So when one examines the argument as to why the word “conviction” was not used in section 475 when it was originally enacted, one could conclude that based on decisions such as that set out in Maxwell v The Queen in England in 1844 that there was a distinction that was properly to be made between the two.
I might add that also in the judgment in Maxwell at page 509 at point 1 there is further reference to this issue of the distinction, also in Justice Toohey’s judgment at the bottom of page 519 and in the judgment of your Honour Justice Gummow and Justice Gaudron at page 531. Those are the matters ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Grace. We will reserve our decision in this matter and we will adjourn until 10.15 am tomorrow.
AT 4.10 PM THE MATTER WAS ADJOURNED
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