Goodenough v State of Victoria
[2017] VSC 543
•13 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 00529
| CLIVE BELMONT GOODENOUGH | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2017 |
DATE OF JUDGMENT: | 13 September 2017 |
CASE MAY BE CITED AS: | Goodenough v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 543 |
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PARDON – Plaintiff wrongly imprisoned – Whether Part 9C of the Corrections Act1986 applies to the payment of damages and legal costs to the Plaintiff – Eastman v DPP (ACT) (2003) 214 CLR 318 – Barton v Commonwealth (1974) 131 CLR 477.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Robertson QC with Mr A Coote | Mahons with Yuncken & Yuncken Solicitors |
| For the Defendant | Ms D Coombs, Victorian Government Solicitor’s Office |
HIS HONOUR:
In 1993, Mr Goodenough was convicted of driving while his licence was suspended and was imprisoned for two months. Mr Goodenough alleges that during his imprisonment he was the victim of two separate assaults which caused him injury. He brought this proceeding against the State of Victoria alleging that there was negligence on the part of prison governors and prison officers, which was a cause of the assaults and Mr Goodenough’s injuries. The State of Victoria did not admit the assaults, and denied negligence. The parties have now resolved the proceeding by agreement that the State of Victoria will pay to Mr Goodenough $240,000 plus costs.
Sometime after his conviction in 1993, it was revealed that Mr Goodenough’s licence had never been validly suspended. The traffic infringement notices against Mr Goodenough, which had formed the basis of the suspension of his licence, were set aside in 1995. In May 2013, the then Governor of Victoria, His Excellency the Honourable Alex Chernov, granted Mr Goodenough a pardon on the exercise of the Royal Prerogative of Mercy, on the basis of satisfaction that a miscarriage of justice had occurred in relation to the conviction for the offence of driving while suspended.
The effect of Part 9C of the Corrections Act 1986 (‘the Act’) is to quarantine, for a period, all or part of an award of damages to a prisoner in respect of a claim made against the State for a civil wrong.[1] Two questions arise in this proceeding. First, does the pardon in respect of the offence which led to imprisonment of Mr Goodenough result in Part 9C not applying to the damages payable pursuant to settlement of the proceeding? Secondly, if Part 9C of the Act does apply, what orders should now be made on approval of the settlement?
[1]Corrections Act 1986 s 104P(1).
Relevant history
In July 1992, Mr Goodenough was issued with traffic infringement notices for exceeding the speed limit by 40 kilometres per hour and for not wearing a seatbelt. He lodged notices of objection to those infringements. Despite those notices of objection, the PERIN Court, in Mr Goodenough’s absence and without his knowledge, imposed penalties against him in respect of the infringements, including suspension of his licence.
In November 1992, Mr Goodenough was stopped by police and was told that his licence was suspended. In January 1993, he was charged on summons with the offence of driving a motor vehicle while his licence was suspended. In June 1993, Mr Goodenough was sentenced on that charge at the Ferntree Gully Magistrates’ Court to a term of imprisonment of one month. On an appeal heard in the County Court in September 1993, the term of imprisonment was increased to two months. As a consequence, Mr Goodenough was imprisoned from 27 September to 22 November 1993. Mr Goodenough alleges the assaults occurred during that term of imprisonment.
In March 1995, Mr Goodenough’s application to set aside the PERIN Court orders and for re-hearing of the traffic infringement notices was granted. In May 1995, Victoria Police formally withdrew the infringement penalty notices initially issued in July 1992 for exceeding the speed limit by 40 kilometres per hour and for not wearing a seatbelt.
Over the following 18 years Mr Goodenough pursued a number of petitions for the exercise of the Royal Prerogative of Mercy in respect of the conviction of driving while suspended. As stated above, Mr Goodenough’s final petition was granted by His Excellency, the Governor of Victoria, in May 2013.
Part 9C of the Act
Part 9C of the Act was introduced by the Corrections (Amendment) Act 2008. The main purpose of the amending Act is to provide for the payment of certain damages awarded to prisoners into a quarantine fund for payment out of amounts recoverable by victims and other creditors from the prisoner.[2] The scheme of Part 9C of the Act requires payment of all or part of any award of damages to a prisoner by the State into a prisoner compensation quarantine fund. Damages are held in the fund for an initial quarantine period of 12 months or until claims against the fund by victims or other creditors of the prisoner have been finalised. Only then is the balance of the damages awarded paid out to the prisoner.
[2]Corrections (Amendment) Act 2008 s 1.
Section 104P(1) of the Act provides that Part 9C applies to an award of damages to a prisoner in respect of a claim made by the prisoner against the State of Victoria for a civil wrong. A prisoner is someone in legal custody.[3] If Part 9C applies, an agreement to settle a proceeding is of no effect until approved by a court. An award of damages made by the Court pursuant to any agreement must, after payment of existing and future medical costs and legal costs, be paid into the prisoner compensation quarantine fund.
[3]Corrections Act 1986 ss 3 (definition of ‘prisoner’), 6A.
As can be seen, Part 9C operates to cause very significant interference with the common law rights of a prisoner.
Does Part 9C of the Act apply?
Submissions
A plain reading of the text of Part 9C of the Act, and in particular s 104P(1) and the definition of ‘prisoner’, would result in that part of the Act applying to the award of damages to Mr Goodenough contemplated by the agreement to settle this proceeding.
However, Mr Goodenough submits that for a number of reasons the effect of the pardon should result in Part 9C of the Act not applying to the settlement. First, the effect of a free pardon is to remove from the person pardoned all consequences of the offence.[4] Secondly, the interference with rights caused by the operation of Part 9C of the Act comes within the category of consequences relieved by a pardon. Thirdly, although by its text Part 9C of the Act would apply to the settlement, there is an ‘extremely strong’ rule of statutory interpretation ‘that the prerogative of the Crown is not displaced except by a clear and unambiguous provision’.[5] There are no express words in the Act impinging or abrogating the prerogative power to pardon, and no necessary implication to that effect.
[4]See Eastman v DPP (ACT) (2003) 214 CLR 318, 350–51 [98] (Heydon J with whom Gleeson CJ and Gummow, Kirby, Hayne and Callinan JJ agreed) (‘Eastman’); R v Foster [1985] QB 115, 130; Halsbury’s Laws of England (4th ed) vol 8, [952].
[5]Barton v Commonwealth (1974) 131 CLR 477, 488 (Barwick CJ) (‘Barton’).
The State of Victoria has chosen to make no submission in respect of Mr Goodenough’s application for a declaration that Part 9C of the Act does not apply to the settlement.
Analysis
Existence of the prerogative to pardon is recognised in Part 9 of the Sentencing Act 1991 and in particular s 106 which provides:
This Act does not affect in any manner Her Majesty’s royal prerogative of mercy.
The other sections in Part 9 of the Sentencing Act 1991 are directed to conditional pardons and remission of penalties, and are not applicable here.
It is appropriate to consider the nature of the power being exercised when Mr Goodenough was pardoned. In Eastman, Heydon J described the common law pardon as follows:
At common law the pardon “is in no sense equivalent to an acquittal. It contains no notion that the man to whom the pardon is extended never did in fact commit the crime, but merely from the date of the pardon gives him a new credit and capacity”. In England it has been held that at common law, “the effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, ‘all pains penalties and punishments whatsoever that from the said conviction may ensue,’ but not to eliminate the conviction itself”.[6]
The Royal Prerogative of Mercy may be exercised, as it was in the case of Mr Goodenough, to grant a free or unconditional pardon. It is a prerogative that lies solely within the discretion of the Crown. According to the authors of the Laws of Australia:
The Vice-Regal Officer, on the advice of the Executive Council, may grant a free pardon to a person convicted of an offence. A pardon operates to remove all pains, penalties, punishments and disabilities arising from the conviction. It does not eliminate the conviction itself, which at common law can only be quashed by a successful appeal, although this position has been altered by statute in some jurisdictions.[7]
Similar statements as to the effect of a pardon are to be found in R v Cosgrove,[8] Re Royal Commission on Thomas Case,[9] Halsbury’s Laws of England[10] and Halsbury’s Laws of Australia.[11]
[6](2003) 214 CLR 318, 350–51 [98] (citations omitted).
[7]Thompson Reuters, The Laws of Australia (at 1 January 2015) 19 Government, ‘3 Executive’ [19.3.710] (citations omitted).
[8](1948) Tas SR 99, 105–106.
[9][1980] 1 NZLR 602, 620.
[10]LexisNexis, Halsbury’s Laws of England, vol 20 (2014) 3 The Judiciary ‘4 The Prerogative of Pardon’ [142].
[11]LexisNexis, Halsbury’s Laws of Australia (at 3 January 2016) 130 Criminal Law ’10 Inquiry After Conviction on Indictment and Pardon’ [130–14065].
A consequence of Mr Goodenough’s conviction was that he became a prisoner and was subject to infringement of his rights, including the infringements imposed by the operation of Part 9C of the Act. There is a direct connection between Mr Goodenough’s conviction, his imprisonment and the infringement of his civil rights which would be caused by the operation of Part 9C of the Act. In my view the consequences of Part 9C come within the category of consequences removed by the exercise of the prerogative power to grant Mr Goodenough a free pardon.
The remaining question is whether the power to grant Mr Goodenough a free pardon has been abrogated or curtailed in any relevant respect by the Act. There is no provision of the Act addressed to pardons. As stated, the text of Part 9C would result in that part applying to the settlement of this proceeding reached between Mr Goodenough and the State of Victoria. However, the prerogative power of the Crown will only be abrogated or curtailed by clear and unambiguous words. In Barton, Barwick CJ observed:
However, the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong.[12]
[12](1974) 131 CLR 477, 488.
In their joint judgment, Tiernan and Menzies JJ described the position as follows:
Accordingly we are satisfied that unless statute, either expressly or by necessary implication, has deprived the [E]xecutive of part of its inherent power, it may make such requests as it considers proper for the assistance of other [S]tates in bringing fugitive offenders to justice.[13]
In the same case, Mason J stated:
It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by implication, that is, necessary implication.[14]
Jacobs J added:
But an intention to withdraw or curtail a prerogative power must be clearly shown and, as I have tried to show earlier, the right to communicate freely with a foreign state is an important prerogative power.[15]
[13]Ibid 491.
[14]Ibid 501 (citations omitted).
[15]Ibid 508.
There are no express words in the Act which have the effect of abrogating or curtailing the power to grant a free pardon. Nor is there anything in the Act which leads to the necessary implication that the prerogative power to pardon is limited or curtailed so as not to have the effect of removing from the person pardoned the consequences of operation of Part 9C of the Act. At least in the circumstances of this case it would be anomalous and unjust if Part 9C were to operate to impose significant restriction on Mr Goodenough’s common law rights. The pardon was granted on satisfaction that a miscarriage of justice had occurred in relation to the conviction of Mr Goodenough on the charge of driving while his licence was suspended. That miscarriage of justice led to Mr Goodenough serving a period of imprisonment. Mr Goodenough alleges that during the period of imprisonment he was the victim of two serious assaults. If Part 9C applied to him, Mr Goodenough would suffer further injustice resulting from interference with his common law rights imposed by that Part. I am satisfied the pardon operates to remove the consequence of Part 9C, and that there is nothing in the Act which abrogates or curtails the operation of the pardon.
Conclusion
I will declare that Part 9C of the Act does not apply to the payment of damages and legal costs to Mr Goodenough contemplated by settlement of this proceeding. The parties provided an agreed form of order relevant in circumstances where that declaration was made. I will make orders in those terms.
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