Jasmin v The Queen - [2017] WASCA 122

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JASMIN -v- THE QUEEN [2017] WASCA 122

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 20 FEBRUARY 2017

DELIVERED : 29 JUNE 2017

FILE NO/S: CACR 151 of 2016

BETWEEN: ALI JASMIN
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1039 of 2010

Catchwords:

Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence

Criminal law - Jurisdiction - Appellant pleaded pursuant to s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction to deal with him - Onus of proof - Primary judge determined after a trial of issues that at the material time the appellant was of the age of 18 years - Primary judge rejected the appellant's plea under s 126(1)(a) and required the appellant pursuant to s 127(4) of the Criminal Procedure Act to enter a different plea to the charge - Whether the primary judge's conclusion that the appellant was of the age of 18 years was unsafe or not reasonably open

Criminal law - Federal offence - Appellant convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum nonparole period of 3 years - The circumstances in which a conviction entered after a plea of guilty may be set aside on appeal

Royal Prerogative of Mercy - Petition in relation to the appellant referred by the Attorney General of the Commonwealth to the Court of Appeal pursuant to s 140 of the Sentencing Act 1995 (WA) - Additional evidence - Whether a miscarriage of justice

Criminal law - Federal offence - Whether s 68(2) of the Judiciary Act 1903 (Cth) operates by analogy upon s 140 of the Sentencing Act to confer on the Commonwealth Attorney General the power to refer to the Court of Appeal a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender who has been convicted on indictment of a federal offence and to confer on the Court of Appeal jurisdiction to entertain the reference

Criminal law - Where the appellant was convicted on indictment following his plea of guilty - Whether the Attorney General is entitled to refer to the Court of Appeal pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment following his or her plea of guilty and not after a trial

Criminal law - Where the appellant did not exercise the right of appeal against conviction conferred by s 23(1) of the Criminal Appeals Act 2004 (WA) - Whether the Attorney General is entitled to refer to the Court of Appeal pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment if the offender has not exercised the relevant right of appeal conferred by s 23(1) of the Criminal Appeals Act

Criminal law - Federal offence - Whether the deeming provision in s 169(2) of the Criminal Procedure Act limits or constrains the Court of Appeal's functions or powers in relation to a reference pursuant to s 140 of the Sentencing Act read with the provisions of the Criminal Appeals Act which confer rights of appeal in relation to an offender convicted on indictment

Criminal law - Federal offence - The appellant's conviction - Whether this court should set aside the judgment of conviction and enter a judgment of acquittal without a trial

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19
Commonwealth Constitution, s 77, s 79
Crimes Act 1914 (Cth), s 3ZQA to s 3ZQK, s 19AP(1)
Crimes Amendment (X-ray) Regulation 2013 (Cth)
Crimes Regulations 1990 (Cth), reg 6C (repealed)
Criminal Appeals Act 2004 (WA), s 23, s 27, s 28, s 30
Criminal Procedure Act 2004 (WA), s 3, s 126, s 127, s 128, s 169
Interpretation Act 1984 (WA), s 9
Judiciary Act 1903 (Cth), s 2, s 39, s 39A, s 68, pt X
Migration Act 1958 (Cth), s 42(1), s 232A, s 233C, s 494
Sentencing Act 1995 (WA), s 137, s 138, s 140
Young Offenders Act 1994 (WA), s 3, s 4, s 6, s 7, s 46, s 50B, s 118, s 118A, s 120

Result:

Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

Category: A

Representation:

Counsel:

Appellant: Mr P A Tierney
Respondent: Ms K A Gregory

Solicitors:

Appellant: Ken Cush & Associates
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Adams v The State of Western Australia [2014] WASCA 191; (2014) 290 FLR 165
Adlem v The Queen [1999] WASCA 1; (1999) 20 WAR 419
AJ v The Queen [2011] WASCA 166
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Anderson v The Queen (1991) 53 A Crim R 421
Ascic v Bedworth [2015] WASCA 109
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
Burt v Governor‑General [1992] 3 NZLR 672
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chowdhury v Kenny [No 2] [2012] WASCA 35
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49
Commonwealth v The District Court of the Metropolitan District Holden at Sydney [1954] HCA 13; (1954) 90 CLR 13
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170
DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147
de Freitas v Benny [1976] AC 239
Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627
Duncan v Independent Commission against Corruption [2015] HCA 32; (2015) 256 CLR 83
Eastman v Director of Public Prosecutions (ACT) (No 2) [2014] ACTSCFC 2; (2014) 9 ACTLR 178
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gilham v The Queen [2012] NSWCCA 131
Griffiths v The Queen (1994) 69 ALJR 77
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65
JS v The State of Western Australia [2014] WASCA 177
Kelleher v Parole Board (NSW) (1984) 156 CLR 364
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481
Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
McHenry v The State of Western Australia [No 2] [2010] WASCA 71
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Mikulic v The State of Western Australia [2011] WASCA 14
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
MOK v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 257 CLR 402
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Nudd v Minister for Home Affairs [2011] FCAFC 105; (2011) 122 ALD 529
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447
Pepper v Attorney‑General (Qld) (No 2) [2008] QCA 207; [2008] 2 Qd R 353
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 249 CLR 398
Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174
R v Chard [1984] AC 279
R v Daley; Ex parte Attorney‑General (Qld) [2005] QCA 162
R v Foster [1985] QB 115
R v Gee [2003] HCA 12; (2003) 212 CLR 230
R v Gunn (No 1) (1942) 43 SR (NSW) 23
R v Hatim [2000] NTSC 53
R v Jasmin [2010] WADC 189
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338
R v Martens (No 1) [2009] QCA 139; [2009] 1 Qd R 564
R v Martens (No 2) [2009] QCA 351; [2011] 1 Qd R 575
R v Murphy [1985] HCA 50; (1985) 158 CLR 596
R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437
R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512
R v Wheeldon [No 1] (1978) 33 FLR 402
Re MJR [2000] VSCA 44; (2000) 1 VR 119
Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527
Ritchie v The State of Western Australia [2016] WASCA 134
Rizeq v The State of Western Australia [2017] HCA 23
Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603
Stoykovski v M (a child) [2002] WASCA 193
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
The State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
Vella v The State of Western Australia [2006] WASCA 129
Von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110
Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Yasmin v Attorney‑General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169
Table of Contents

Buss P's reasons........................................................................................................................ 9
Overview of the proceedings before the primary judge
The operation of s 233C of the Migration Act and the onus of proof
The onus of proof under s 126(1)(a) of the Criminal Procedure Act
The appellant's appeal rights under the Criminal Appeals Act 2004 (WA)
The appellant's release from prison on licence and his repatriation to Indonesia
The Royal Prerogative of Mercy
Part 19 of the Sentencing Act
The regime in s 140(1)(a) of the Sentencing Act and the judicial function it confers
The appellant's petition for the exercise of the Royal Prerogative of Mercy
Three preliminary issues in relation the referral of the petition by the Commonwealth Attorney General to this court
Does s 68(2) of the Judiciary Act operate by analogy upon s 140 of the Sentencing Act?
Is the Attorney General entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment following his or her plea of guilty?
Is the Attorney General entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment if the offender has not exercised the relevant right of appeal conferred by s 23(1) of the Criminal Appeals Act?
The ground of appeal
The appellant's orders wanted
The Crown's concession
Section 30(3) of the Criminal Appeals Act
The concept of a 'miscarriage of justice' within s 30(3)(c) of the Criminal Appeals Act
The concept of a 'substantial miscarriage of justice' within s 30(4) of the Criminal Appeals Act
The evidence before the primary judge as to the appellant's age
The primary judge's reliance on Dr Low's evidence
The primary judge's reliance on the appellant's evidence about his date of birth
The primary judge's reliance on his observations of the appellant in court
Other evidence as to the appellant's age
Additional evidence admitted at the hearing of the referral
The merits of the ground of appeal
The outcome of the referral to this court pursuant to s 140(1)(a) of the Sentencing Act and the orders which should be made

Conclusion
Mazza & Mitchell JJA's reasons........................................................................................... 60
Factual Background and Procedural History
Jurisdiction of the District Court to try the appellant on indictment

Jurisdiction of this court on the reference
Authority of the Commonwealth Attorney General to refer the petition
The District Court lacked jurisdiction in this case
Appropriate orders

BUSS P: The appellant, who is an Indonesian citizen, was charged on indictment that between about 15 December 2009 and 18 December 2009, at Indonesia and the seas between Indonesia and Australia, the appellant facilitated the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applied, namely a group of 55 Afghani people, and did so reckless as to whether the people had, or have, a lawful right to come to Australia, contrary to s 232A of the Migration Act.
At the material time, the maximum penalty for the offence created by s 232A of the Migration Act was 20 years' imprisonment or 2,000 penalty units, or both.
At the material time, s 233C prescribed mandatory penalties for a person convicted of an offence under s 232A. The mandatory penalties applied unless it was established, on the balance of probabilities, that the offender was aged under 18 years when the offence was committed. See s 233C(1). By s 233C(2), the court was required, if the conviction was not for a repeat offence, to impose a sentence of at least 5 years' imprisonment. By s 233C(3), the court was required, if the conviction was not for a repeat offence, to set a non‑parole period of at least 3 years.
On 22 December 2010, the appellant was convicted in the District Court of Western Australia on his plea of guilty to the charge. He was sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum non‑parole period of 3 years. The sentence was backdated to 18 December 2009.
On 19 November 2015, a petition for the exercise of the Royal Prerogative of Mercy in relation to the appellant was referred by the Attorney General of the Commonwealth to this court, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA), for the whole case to be heard and determined as if it were an appeal by the appellant against his conviction.
I would allow the appeal, set aside the judgment of conviction and enter a judgment of acquittal.

Overview of the proceedings before the primary judge

The Crown brought the prosecution in the District Court of Western Australia. By s 39, s 39A, s 68(2) and s 68(5C) of the Judiciary Act 1903 (Cth) read with s 494 of the Migration Act, the District Court is invested with federal jurisdiction in relation to offences against the Migration Act.
By s 19(1) of the Children's Court of Western Australia Act 1988 (WA), the Children's Court of Western Australia has exclusive jurisdiction, subject to s 19(1a) of that Act, to hear and determine a charge of an offence alleged to have been committed by a person aged under 18 years. Section 19(1a) did not apply to the appellant or the charge. By s 19(2), notwithstanding that a person has attained the age of 18 years, the jurisdiction of the Children's Court extends, and the provisions of the Children's Court of Western Australia Act apply, to proceedings in respect of an offence committed, or allegedly committed, by the person before attaining the age of 18 years.
On 1 October 2010, at a directions hearing before Martino CJDC, defence counsel indicated that the appellant would enter a plea, pursuant to s 126(1)(a) of the Criminal Procedure Act 2004 (WA), that the District Court did not have jurisdiction to deal with him because he was aged under 18 years (ts 20 ‑ 21). His Honour stated that he would 'list this matter for one day for trial by judge alone, with a plea that [the District Court] does not have jurisdiction on the ground of [the appellant's] age' (ts 21). A formal plea pursuant to s 126(1)(a) was not entered on 1 October 2010. The matter was listed for hearing on 8 December 2010.
On 8 December 2010, there was a trial in the District Court before Keen DCJ (the primary judge) as to whether the appellant was aged under 18 years when the offence charged in the indictment was allegedly committed. On 8 December 2010, the appellant did not enter a formal plea pursuant to s 126(1)(a) of the Criminal Procedure Act, but the trial proceeded on the basis that he had done so.
On 22 December 2010, his Honour found, on the balance of probabilities, that at the material time the appellant was of the age of 18 years. His Honour therefore concluded that the District Court had jurisdiction to deal with the appellant and the charge. See R v Jasmin [2010] WADC 189 [98].
On 22 December 2010, after the primary judge published his reasons for decision, the appellant entered a plea of guilty to the charge. On that date his Honour entered a judgment of conviction and imposed sentence.

The operation of s 233C of the Migration Act and the onus of proof

In AJ v The Queen [2011] WASCA 166, McLure P (Buss JA & Mazza J agreeing) observed, in the context of an appeal by the present appellant against sentence:
Section 233C applies 'unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed'. According to the appellant's counsel, the appellant and the Crown accepted for the purpose of the trial of the issue that the Crown bore the burden of establishing that the person was aged under 18 years when the offence was committed. The correctness of that proposition may be doubted. The language of s 233C(1) suggests that its application is not conditioned on a positive finding that the offender was aged under 18 when he committed the offence; rather, the language is in terms that the section ceases to apply if it is positively established that the offender was aged under 18 years. That structure is consistent with an intention that the burden of proof of age is on the offender. However, it is unnecessary to determine that issue. It is sufficient for present purposes to note that the section does not cease to apply unless it is positively proven on the balance of probabilities that the offender was aged under 18 years when the offence was committed. The absence of such a finding or a positive inconsistent finding will have the consequence that s 233C applies [11]. (original emphasis)
It is unnecessary to resolve, for the purposes of this reference, the point about the onus of proof under s 233C(1).

The onus of proof under s 126(1)(a) of the Criminal Procedure Act

Section 126(1)(a) of the Criminal Procedure Act provides that if, under that Act, an accused may or must plead to a charge, the accused may plead that 'the court does not have jurisdiction to deal with the accused or the charge'.
As Mason CJ and Dawson J noted in Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1, the issue of guilt in a criminal trial is necessarily determined within a particular jurisdiction (12). However, the issue of guilt cannot be determined unless the prosecution establishes the particular jurisdiction's authority to enter judgment (12). The question of jurisdiction is distinct from that of guilt (that is, distinct from whether the prosecution has proved beyond reasonable doubt each of the elements of the offence) (12). See also Thompson (39) (Gaudron J); Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 678 ‑ 679 (Toohey J); Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 [87], [90] ‑ [91] (Gaudron, Gummow & Hayne JJ).

In my opinion, it follows from the obligation of the prosecution to establish the particular jurisdiction's authority to enter judgment, that if an accused pleads under s 126(1)(a) of the Criminal Procedure Act that the court does not have jurisdiction to deal with the accused or the charge, the onus is on the prosecution to establish that the court does have that jurisdiction. The civil standard of proof (that is, proof on the balance of probabilities) applies. See Thompson (15) (Mason CJ, & Dawson J), (28 ‑ 30) (Brennan J), (39) (Gaudron J); R v Hatim [2000] NTSC 53 [4] (Thomas J). See also Stoykovski v Mazela [2002] WASCA 193.

The appellant's appeal rights under the Criminal Appeals Act 2004 (WA)

Section 23(1) of the Criminal Appeals Act 2004 (WA) conferred on the appellant a right to appeal to this court against his conviction (s 23(1)(a)) and against the sentence imposed on him (s 23(1)(b)).
By s 28(3), relevantly, an appeal under s 23(1) cannot be commenced later than 21 days after the date of the decision or judgment unless this court orders otherwise. By s 28(4), if the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time in s 28(3) for an appeal against either the conviction or the sentence or both runs from the date of sentencing.
The appellant appealed against sentence. The appeal was dismissed. See AJ. The appellant did not raise in the appeal any of the issues that now arise for decision.
The appellant has not appealed against conviction.

The appellant's release from prison on licence and his repatriation to Indonesia

On 10 May 2012, the Commonwealth Attorney General directed, under s 19AP(1) of the Crimes Act 1914 (Cth), that on 18 May 2012 the appellant be released from prison on licence.
On 18 May 2012, the appellant was released and repatriated to Indonesia.

The Royal Prerogative of Mercy

The Royal Prerogative of Mercy at common law is a matter which lies solely in the discretion of the Crown. As Lord Diplock (delivering the advice of the Privy Council) said in de Freitas v Benny [1976] AC 239, mercy is not the subject of legal rights and the exercise of the Crown prerogative at common law is purely a discretionary act (247).
As developed, the Crown prerogative at common law has become an integral element in the criminal justice system. See Burt v Governor‑General [1992] 3 NZLR 672, 681 (Cooke P, Gault & McKay JJ); R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349, 362 ‑ 363 (Watkins & Neill LJJ & Tuckey J); Pepper v Attorney‑General (Qld) (No 2) [2008] QCA 207; [2008] 2 Qd R 353 [11] (Muir JA; de Jersey CJ & Fraser JA agreeing). See also Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527, 540 ‑ 542 (Lord Goff of Chieveley delivering the advice of the Privy Council).

Part 19 of the Sentencing Act

Part 19 of the Sentencing Act is headed 'Royal Prerogative of Mercy' and comprises s 137 to s 142.
Section 137 provides:
Neither this Act nor the Sentence Administration Act 2003 affects the Royal Prerogative of Mercy or limits any exercise of it.
By s 138(1), a pardon granted in the exercise of the Royal Prerogative of Mercy has the effect of discharging the offender from the effects of the sentence imposed for the offence and of any other order made as a consequence of the offender's conviction. By s 138(2), a pardon does not quash or set aside the conviction for the offence.
Section 140 provides:
(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Appeal either ‑
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or
(b)for an opinion on any specific matter relevant to determining the petition.
(1a)When making a referral under subsection (1)(a) the Attorney General, having regard to the petition, may specify the grounds of appeal to be heard and determined by the Court of Appeal.
(2)The Court of Appeal must give effect to the referral.
By s 141(1), in the exercise of the Royal Prerogative of Mercy in relation to an offender who is sentenced to imprisonment, the Governor may make a parole order in respect of the offender. By s 141(2), an offender may be paroled under s 141(1) whether or not he or she is or will be eligible for parole and despite s 96(3).
Section 142 is concerned with the exercise of the Royal Prerogative of Mercy by the making of an order in relation to a person serving a sentence of life imprisonment in respect of which an order has been made under s 90(1)(b).

The regime in s 140(1)(a) of the Sentencing Act and the judicial function it confers

The regime in s 140(1)(a) of the Sentencing Act is, in effect, both a substitute for, and an alternative to, the invocation and the exercise of the Royal Prerogative of Mercy at common law. See Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [6] (Gummow, Hayne, Callinan & Heydon JJ). The Crown prerogative at common law was 'an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions': Mallard [6]. Gummow, Hayne, Callinan and Heydon JJ observed that the history of the Royal Prerogative of Mercy at common law favoured an approach by a court, on a reference of a petition by the Attorney General to the court pursuant to s 140(1)(a), 'of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any' that pt 19 of the Sentencing Act may otherwise require [6].
In Mallard, Gummow, Hayne, Callinan and Heydon JJ considered the scope of the judicial function conferred by s 140(1)(a); in particular, the proper construction of the expression 'the whole case' and the phrase 'as if it were an appeal' in s 140(1)(a). Their Honours said:
Subject only to what we will say later about the words 'as if it were an appeal' which appear in s 140(1)(a) of the Act, the explicit reference to 'the whole case' (Sentencing Act 1995 (WA), s 140(1)(a)) conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words 'as if it were an appeal' are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code [10].
See also Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 312 (Toohey & Gaudron JJ; Mason CJ & Brennan J agreeing); R v Chard [1984] AC 279, 289 ‑ 291 (Lord Diplock; Lord Scarman, Lord Roskill, Lord Brandon of Oakbrook & Lord Templeman agreeing).
It is apparent from those authorities that:
(a)This court is bound, upon a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment being referred under s 140(1)(a), to engage in appellate review of the whole case which resulted in the petitioner's conviction on any ground specified by the Attorney General or, in the absence of specification, on any ground raised by the petitioner.
(b)The grounds specified by the Attorney General or raised by the petitioner may concern matters of law or fact or mixed law and fact because 'the whole case' is referred to the court, and that includes all issues of fact and law involved in it.
(c)However, by virtue of the requirement in s 140(1)(a) that this court hear and determine a petition referred by the Attorney General 'as if it were an appeal by the offender against the conviction', this court is confined, in hearing and determining the petition, to the making of orders and the following of procedures in accordance with the Criminal Appeals Act, and any inherent power this court may have, in relation to an appeal by an offender against conviction.

The appellant's petition for the exercise of the Royal Prerogative of Mercy

As I have mentioned, on 19 November 2015, a petition by the appellant for the exercise of the Royal Prerogative of Mercy in relation to him was referred by the Commonwealth Attorney General to this court, pursuant to s 140(1)(a) of the Sentencing Act, for the whole case to be heard and determined as if it were an appeal by the appellant against his conviction.
The Attorney General's referral reads, relevantly:
AND WHEREAS a petition pursuant to the provisions of section 140 of the Sentencing Act 1995 (WA) (hereinafter called 'the Act') for a review of the said conviction has been made to the Attorney-General for the Commonwealth of Australia by the petitioner;
AND WHEREAS paragraph 140(l)(a) of the Act applies to federal offenders by virtue of the provisions of subsection 68(2) of the Judiciary Act 1903;
AND WHEREAS pursuant to paragraph 140(l)(a) of the Act the Attorney‑General may refer to the Court of Appeal the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be);
AND WHEREAS I, GEORGE BRANDIS, Attorney-General for the Commonwealth of Australia, having duly considered the petition, have decided to exercise my discretion to refer the whole case to the Court of Appeal as if it were an appeal by the petitioner against the petitioner's conviction.
I THEREFORE hereby refer the case to the Court of Appeal pursuant to the powers vested in me by subsection 68(2) of the Judiciary Act 1903 and paragraph 140(l)(a) of the Act.

Three preliminary issues in relation the referral of the petition by the Commonwealth Attorney General to this court

In the present case, three preliminary issues arise in relation to the referral of the petition by the Commonwealth Attorney General to this court.
First, does s 68(2) of the Judiciary Act operate by analogy upon s 140 of the Sentencing Act:
(a)to confer on the Commonwealth Attorney General the power to refer to this court pursuant to s 140 a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender who has been convicted on indictment of a federal offence; and
(b)to confer on this court jurisdiction to entertain the reference?
Secondly, if so, is the Attorney General entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment following his or her plea of guilty?
Thirdly, if so, is the Attorney General entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment if the offender has not exercised the relevant right of appeal conferred by s 23(1) of the Criminal Appeals Act?
I will deal with each of the preliminary issues in turn.

Does s 68(2) of the Judiciary Act operate by analogy upon s 140 of the Sentencing Act?

By s 77(iii) of the Commonwealth Constitution, the Commonwealth Parliament may make laws with respect to investing any court of a State with federal jurisdiction.
Chapter III of the Commonwealth Constitution, while enabling the Commonwealth Parliament to utilise the judicial services of State courts, unequivocally recognises that they remain 'State courts'. See R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J); Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481, 495 (Knox CJ, Rich & Dixon JJ).
The general powers embodied in s 77 and s 79 of the Commonwealth Constitution do not authorise the Commonwealth Parliament to enact legislation dealing with the constitution or organisation of State courts. If the Commonwealth Parliament confers part of the judicial power of the Commonwealth upon State courts, that federal jurisdiction is vested in the State courts as they are constituted and organised under State law. The Commonwealth takes State courts as it finds them. See Le Mesurier (495 ‑ 496); Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69, 88 (Menzies J), 109 (Gibbs J); Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49, 64 (Mason J), 66 (Murphy J); Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 92 (Mason CJ & Deane J), 109 (Brennan J), 117 (Dawson J), 138 (Toohey J), 143 (Gaudron J), 158 (McHugh J).
Section 39 and s 68 of the Judiciary Act confer federal jurisdiction upon State courts. See also s 39A. Section 39 and s 68 are ambulatory in character. As to s 39, see Commonwealth v The District Court of the Metropolitan District Holden at Sydney [1954] HCA 13; (1954) 90 CLR 13, 22 (Dixon CJ, Kitto & Taylor JJ). As to s 68, see R v Gee [2003] HCA 12; (2003) 212 CLR 230 [6] ‑ [7] (Gleeson CJ), [24] (McHugh & Gummow JJ). See also R v LK [2010] HCA 17; (2010) 241 CLR 177 [13] (French CJ).
Part X of the Judiciary Act is headed 'Criminal jurisdiction'. Division 1 of pt X is headed 'Application of laws' and comprises s 68, s 68A, s 68B and s 68C. Division 2 of pt X is headed 'Indictable offences' and comprises s 69, s 70, s 70A, s 71 and s 71A. Division 3 of pt X is headed 'Appeals' and comprises s 72, s 73, s 74, s 75, s 76 and s 77.
Section 68(1), s 68(2) and s 68(5C) of the Judiciary Act provide:
(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a)their summary conviction; and
(b)their examination and commitment for trial on indictment; and
(c)their trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2)The several Courts of a State or Territory exercising jurisdiction with respect to:
(a)the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
…
(5C)The jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to:
(a)the examination and commitment for trial on indictment; and
(b)the trial and conviction on indictment;
of persons charged with offences against the laws of the Commonwealth, being offences committed elsewhere than in a State or Territory (including offences in, over or under any area of the seas that is not part of a State or Territory), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory. (emphasis added)
Section 68(2) refers to 'the hearing and determination of appeals'. Section 2 provides that in the Act, unless the contrary intention appears:
Appeal includes an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge.
The administration of federal criminal law is organised on a State by State basis. Each State administers federal criminal law upon the same footing as State criminal law. See Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551, 560 (Dixon J); R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338, 345 (Mason J); R v Murphy [1985] HCA 50; (1985) 158 CLR 596, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ); Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455, 467 (Mason CJ, Dawson & McHugh JJ).
State laws concerning criminal procedure do not apply, of their own force, in the exercise by a State court of federal jurisdiction with respect to the prosecution of federal offences. Rather, the State laws are 'picked up' and applied by s 68(1) of the Judiciary Act as federal laws. See Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 [4] (Gleeson CJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [21] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [113] (Hayne & Bell JJ); MOK v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 257 CLR 402 [84] (Gordon J). See also, in the context of s 79 of the Judiciary Act, Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 [80] (Gleeson CJ & Gummow J); Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).
When s 68(1) of the Judiciary Act 'picks up' and applies a State law as a federal law, the State law applies with its meaning unchanged, subject to the qualification that the State law is applied upon the hypothesis that it operates as a federal law. See, in the context of s 79 of the Judiciary Act, John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65, 88 (Gibbs J), 95 (Mason J); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [134] ‑ [137] (McHugh J).
In Solomons, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ noted that s 68 of the Judiciary Act distinguishes between jurisdiction, on the one hand, and powers and procedures, on the other [19]. By s 68(1), State laws with respect to, relevantly, procedure are to apply 'so far as they are applicable' [19]. By contrast, s 68(2) is concerned with 'the ambit of the jurisdiction rather than the content of the powers to be exercised under it' [19].
In Putland, Gleeson CJ said there is no justification for distinguishing between the procedures referred to in s 68(1) of the Judiciary Act, on the one hand, and powers, on the other [6]. His Honour said that s 68(1)(a) to s 68(1)(d) refer to 'procedures of various kinds which typically involve or create powers' [6].
By virtue of the express qualification 'so far as they are applicable' in s 68(1) of the Judiciary Act, the State laws, to which s 68(1) refers, apply except as otherwise provided from time to time by the laws of the Commonwealth. See Putland [7] (Gleeson CJ), [41] (Gummow & Heydon JJ), [121] (Callinan J); Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [11] (French CJ, Gummow, Hayne, Kiefel & Bell JJ). Accordingly, a State law, to which s 68(1) refers, will not be 'picked up' and applied by s 68 if a Commonwealth law expressly or impliedly makes contrary provision or if there is a Commonwealth legislative scheme dealing with the subject matter of the State law which is 'complete upon its face' and has 'left no room' for the operation of the State law. See Gee [62] (McHugh & Gummow JJ); Putland [7] (Gleeson CJ); Bui [25] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

The expression 'the trial and conviction on indictment' in s 68(2)(c) and s 68(5C)(b) of the Judiciary Act must be read in the context of the primary meaning of the word 'conviction'. This word refers to the judicial determination of a criminal proceeding by a judgment involving two matters, namely a finding of guilt or an acceptance of a plea of guilty followed, in each case, by sentence. See Williams [No 2] (560 ‑ 561) (Dixon J); Putland [4] (Gleeson CJ), [32] (Gummow & Heydon JJ), [121] (Callinan J).
In Williams [No 2], Dixon J was of the opinion that, in the context of the appellant having been convicted and sentenced by a New South Wales court for an indictable offence against a law of the Commonwealth, s 68(2) of the Judiciary Act operated upon s 5D of the Criminal Appeal Act 1912 (NSW) so as to enable the Commonwealth Attorney General to appeal against the sentence to the Court of Criminal Appeal of New South Wales. After referring to the text of s 68(2) (as then enacted), his Honour said:
A provision conferring jurisdiction to hear and determine appeals of a specified kind may, perhaps, be taken to mean to do no more than to say which shall be the Court to entertain appeals and administer the remedies that other provisions of the law give to the party. But it is also open to an interpretation by which it gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them. The first construction would defeat the clear object of the Legislature. The second would achieve it, and ought, therefore, to be adopted.
… But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description 'appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith.' This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States.
…
… The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When sec 68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,' it recognizes that the adoption of State law must proceed by analogy. The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General. I do not feel any difficulty in deciding that, under the word 'like' in the expression 'like jurisdiction,' the functions under sec 5D of the State Attorney-General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws of the Commonwealth (560 ‑ 562).
In Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447, the High Court held, by a majority, that s 68(2) of the Judiciary Act operated upon s 5D of the Criminal Appeal Act 1912 (NSW) so as to enable the Commonwealth Attorney General to appeal to the Court of Criminal Appeal of New South Wales against a sentence pronounced by the Supreme Court, or another court of the State, upon the conviction of a person charged with a federal offence.
The majority in Peel referred with approval to the opinion expressed by Dixon J in Williams [No 2] (560 ‑ 562). See, in particular, the reasons of Menzies J (457), Owen J (458 ‑ 459) and Gibbs J (468 ‑ 469).
In Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119, the High Court held that s 68(2) of the Judiciary Act, when applied to s 567A of the Crimes Act 1958 (Vic), had the effect of conferring a right of appeal on the Commonwealth Attorney General and, accordingly, s 9(7) of the Director of Public Prosecutions Act 1983 (Cth) vested that right of appeal in the Director.
In Gee, the High Court decided that s 68(2) of the Judiciary Act invested the Full Court of the Supreme Court of South Australia with jurisdiction to hear and determine a question of law arising in relation to a trial in the District Court of South Australia of an offence against a Commonwealth law, the question having been reserved for consideration by the Full Court under s 350 of the Criminal Law Consolidation Act 1935 (SA). The reservation of such a question was an 'appeal' as defined in s 2 of the Judiciary Act. The High Court reviewed the historical development of pt X of the Judiciary Act.
Gleeson CJ stated [13]:
There is no reason why the reference to appeals in s 68(2) should not be applied with full generality, having regard to the purpose of Div 1 of Pt X of the Judiciary Act. Plainly, Div 3 [of pt X of the Judiciary Act] is no longer a code of procedure with respect to appeals. It would be contrary to the purpose of the legislation to treat Div 3 as the exclusive source of jurisdiction in relation to appeals by way of case stated. The case stated procedure provided for by s 350 of the Criminal Law Consolidation Act is a form of appeal. It does not further the general policy of placing the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State to treat the provisions of Div 3 of Pt X as, in effect, confining the case stated procedures provided for by the Judiciary Act to those of the kind in force at the time of Federation. The fact that this might result in a degree of overlap between Div 1 and Div 3 does not alter the case. This Court said, in Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc ((1994) 181 CLR 404 at 421):
'It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.'
McHugh and Gummow JJ said there was no difficulty in giving pt X, including s 68(2) and s 72 ‑ s 77, a harmonious operation [65]. Their Honours explained:
Division 3 of Pt X supplements the conferral of jurisdiction in Div 1 (s 68). If the procedures which s 72 provides are utilised and the presiding judge signs a case stating the question of law reserved for the 'Full Court of the Supreme Court of the State' spoken of in s 72(1), the Full Court is invested with federal jurisdiction to hear and determine, in accordance with ss 73 and 74, the question reserved. Section 15C of the Acts Interpretation Act 1901 (Cth) makes clear the investment of federal jurisdiction in the Full Court. As presently relevant, it enacts that where a provision of a statute 'whether expressly or by implication' authorises a criminal proceeding to be instituted in a particular court in relation to a matter, that provision shall be deemed to vest that court with jurisdiction in that matter. That grant of jurisdiction operates by the further grant to that made in criminal cases by s 68(2) (cf R v Bull (1974) 131 CLR 203 at 258). It is unnecessary to determine the extent to which those two grants of jurisdiction operate cumulatively or alternatively to the general grant in s 39(2) [66].
In LK, French CJ (Gummow, Hayne, Crennan, Kiefel & Bell JJ agreeing) said that the jurisdiction of the Court of Criminal Appeal of New South Wales to entertain an appeal against a directed acquittal in relation to the prosecution of an accused for a federal offence derived from s 68(2) of the Judiciary Act read with s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) [20], [86].
In R v Martens (No 1) [2009] QCA 139; [2009] 1 Qd R 564, the appellant, an Australian citizen, was convicted of an offence contrary to s 50BA of the Commonwealth Crimes Act. He was sentenced to 5 years 6 months' imprisonment with a non‑parole period of 3 years. The appellant appealed to the Court of Appeal of Queensland against his conviction and applied for leave to appeal against his sentence. His appeal against conviction and his application in relation to sentence were dismissed. Subsequently, the Commonwealth Attorney General considered information submitted on the appellant's behalf and the case as a whole. The Attorney formed the belief that the evidence submitted to him might raise a significant possibility that the appellant would be acquitted by a jury acting reasonably. On 9 April 2009, the Attorney referred the appellant's case to the Court of Appeal under s 672A of the Criminal Code (Qld). Section 672A is comparable to s 140 of the Western Australian Sentencing Act. The appellant applied to the Court of Appeal for bail pending the determination of the reference.
The Court of Appeal (Keane & Fraser JJA and Applegarth J) ordered that the appellant be admitted to bail. However, their Honours made the following observations (obiter dicta) doubting that s 68(2) of the Judiciary Act operated upon s 672A of the Queensland Criminal Code so as to enable the Commonwealth Attorney General, in the context of a conviction and sentence for a federal offence, to refer a petition to the Court of Appeal pursuant to s 672A [14] ‑ [15]:
Section 68(2) of the Judiciary Act does not require or authorise this Court to treat the Attorney‑General of the Commonwealth as if he were the Attorney-General for the State of Queensland for the purposes of exercising the power conferred peculiarly on the Attorney-General of Queensland. It is difficult to see how the power conferred by s 672A on a specified person, namely the Attorney‑General of Queensland, and on him or her alone, is also conferred on a different person, namely the Attorney‑General of the Commonwealth. Certainly s 68(2) of the Judiciary Act does not reveal an intention to confer such a power. This difficulty is compounded by the consideration that the extraordinary jurisdiction enlivened by the Attorney‑General's reference under s 672A arises as a consequence of the exercise of power under a statutory provision which is an adjunct to the prerogative of mercy of the Crown in right of the State of Queensland.
All this having been said, neither party has sought to argue this point. Parties cannot confer on a court a jurisdiction which it does not have by agreement or concession. However this Court should proceed to resolve the application for bail on the basis that there is no doubt about the jurisdiction of the Court to entertain applications for bail, and that it is at least arguable that the Commonwealth Attorney‑General may enliven the jurisdiction of this Court under s 672A of the Criminal Code. The argument in support of a jurisdiction based upon the operation of s 68 of the Judiciary Act appears in the reasons of Logan J in Martens v Commonwealth of Australia [[2009] FCA 207; (2009) 174 FCR 114 [13] ‑ [40]].
However, in R v Martens (No 2) [2009] QCA 351; [2011] 1 Qd R 575, a majority of the Court of Appeal of Queensland (Muir & Chesterman JJA; Fraser JA dissenting) held, in the course of hearing and determining the reference from the Commonwealth Attorney General, that s 68(2) of the Judiciary Act operated by analogy to confer on the Attorney the power to refer a petition to the Court of Appeal pursuant to s 672A of the Queensland Criminal Code and to confer on that court like jurisdiction with respect to persons charged with federal offences as it had with respect to persons charged with State offences. Accordingly, the Court of Appeal had jurisdiction to entertain the reference. Chesterman JA (Muir JA agreeing) reasoned as follows:
The first objection made to the applicability of s 68(2) expressed by the Court on the bail application, that the Court has no jurisdiction to entertain another appeal is, I think, answered. The exposition of the nature of a reference by Jordan CJ in Gunn [R v Gunn (No 1) (1942) 43 SR (NSW) 23] is explicit. The hearing of a reference is an appeal.
The second objection, that s 672A confers the power to refer a petition for pardon upon, and specifically only upon, the Attorney‑General for the State of Queensland is I think met by the reasoning in Peel v The Queen (1971) 125 CLR 447 and Williams v The King [No. 2] (1934) 50 CLR 551, in particular the judgment of Dixon J.
…
[Section 68(2)] 'operates by analogy'. The right to refer a petition for a pardon to the Court pursuant to s 672A may by its terms be conferred exclusively upon the Attorney‑General for the State of Queensland, but that cannot prevent s 68(2) operating according to its terms to confer, by analogy, the same power upon the Commonwealth Attorney‑General. The jurisdiction can only be invoked if the Commonwealth Attorney‑General can refer a petition. The right which, by analogy, attaches to the Commonwealth Attorney‑General allows the Attorney to refer a petition to the Court which has like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth as it has with respect to those charged with laws against the State. Section 68(2) therefore operates on s 672A so as to permit the reference made in this case.
…
To achieve uniformity within Queensland as to the procedure for dealing with State and Federal offences it is necessary that persons convicted in Queensland courts of an offence against a law of the Commonwealth have the same rights to have their petitions for a pardon referred to the Court pursuant to s 672A as do those convicted of State offences. This requires reading s 68(2) as extending the power to make the reference to the Commonwealth Attorney‑General [85] ‑ [86], [92], [94].
In Nudd v Minister for Home Affairs [2011] FCAFC 105; (2011) 122 ALD 529, the appellant was convicted in the Supreme Court of Queensland in 2003 of a federal offence. His appeals to the Court of Appeal of Queensland and the High Court were dismissed. In 2008 the appellant petitioned the respondent (the Commonwealth Minister for Home Affairs) to refer his case to the Court of Appeal of Queensland under s 672A of the Queensland Criminal Code. The respondent refused to refer the appellant's case. The appellant applied for judicial review of the respondent's decision. A judge of the Federal Court of Australia affirmed the decision. The appellant's appeal to the Full Court of the Federal Court was dismissed. In the Full Court, Dowsett, Bennett and Greenwood JJ expressed scepticism as to whether s 68 of the Judiciary Act operated to apply s 672A to a conviction for a federal offence. Their Honours said (obiter dicta):
At first blush it seems curious that such a provision in state legislation should apply to a conviction for an offence against a law of the Commonwealth. However it is said that s 68 of the Judiciary Act 1903 (Cth) allows the Attorney-General of the Commonwealth to refer such a conviction to the Court of Appeal pursuant to s 672A(a). Both the appellant and the respondent … seem to accept that proposition. There is authority for it. We proceed on that basis without determining its correctness [10].
In Yasmin v Attorney‑General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169, the appellant in those proceedings was (despite the different spelling of his surname) the appellant in the present case. The proceedings concerned the appellant's petition to the Commonwealth Attorney General. In July 2014, the appellant requested the Attorney to refer the matter to this court. During the following five months, correspondence passed between the appellant's solicitors and the Attorney's Department, but no decision was made. In December 2014, the appellant commenced proceedings against the Attorney in the Federal Court seeking judicial review of the Attorney's failure to decide whether to refer the matter to this court on the basis of unreasonable delay within s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Attorney objected to the competency of the appellant's application on the ground that the Attorney was under no duty to make a decision as to whether to refer the appellant's case pursuant to s 140 of the Sentencing Act. A preliminary question of jurisdiction was raised by the Full Court, namely whether s 68 of the Judiciary Act operated upon s 140. The Full Court (Kenny, Robertson and Mortimer JJ) held that the court had jurisdiction and that the power conferred on the Attorney under s 140 carried with it a duty to consider and then determine whether to exercise that power. Their Honours said [11] ‑ [12]:
The question as we see it is whether s 140 of the Sentencing Act is a law of the State respecting the procedure for the hearing and determination of appeals arising out of the trial or conviction of the appellant or out of any proceedings connected therewith. We see no difficulty with s 140 being taken to be part of the available procedure for the hearing and determination of appeals arising out of any trial or conviction on indictment. Even if a petition is not successful it may be seen as part of the procedure for the hearing and determination of appeals as it seeks to set in train, by a referral, the case to be heard and determined as if it were an appeal by the offender. Further, the word 'proceedings' in s 68(1)(d) of the Judiciary Act should not be given a limited meaning so as to exclude a petition 'for the exercise of the Royal Prerogative of Mercy' which may be referred by the Attorney-General to the Court of Appeal for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be), to use the words of s 140.
In our opinion, s 68 of the Judiciary Act operated to apply s 140 of the Sentencing Act. We agree with the similar conclusion of the majority in the Court of Appeal of Queensland in R v Martens (No 2). We do not share the seeming scepticism expressed in Nudd v Minister for Home Affairs (2011) 122 ALD 529 at [10].
In my opinion, s 68(2) of the Judiciary Act operates by analogy upon s 140 of the Sentencing Act to confer on the Commonwealth Attorney General the power to refer a petition to this court pursuant to s 140 of the Sentencing Act and to confer on this court like jurisdiction with respect to persons charged with and convicted of federal offences as it has with respect to persons charged with and convicted of State offences. This court therefore has jurisdiction to entertain the Commonwealth Attorney General's reference. My reasons are as follows.
First, the term 'appeal', as defined in s 2 of the Judiciary Act, has a broad connotation. The reference to appeals in s 68(2) should be applied with full generality, having regard to the purpose of div 1 of pt X. Division 3 of pt X is no longer a code of procedure with respect to appeals. See Gee [13] (Gleeson CJ), [65] ‑ [66] (McHugh and Gummow JJ).
Secondly, s 140 of the Sentencing Act confers on the Attorney General for Western Australia the discretionary power to refer to this court a petition for the exercise of the Royal Prerogative of Mercy in relation to, relevantly, an offender convicted on indictment. The discretionary power is conferred on the Attorney in virtue of his or her office. Section 68(2), in referring to the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth', recognises that the adoption of State law must proceed by analogy. The Commonwealth Attorney General represents the Crown in right of the Commonwealth in a manner analogous to the Attorney General for Western Australia's representation of the Crown in right of the State. The word 'like', in the expression 'like jurisdiction' in s 68(2), operates so that the discretionary power of the Attorney General for Western Australia under s 140, in the case of State offenders, is exercisable by the Commonwealth Attorney General, in the case of federal offenders. See the reasoning of Dixon J in Williams [No 2] (560 ‑ 562) as approved by the majority in Peel.

Thirdly, although s 140 of the Sentencing Act is expressed exclusively by reference to the Attorney General for Western Australia, that expression cannot prevent s 68(2) operating according to its terms so as to confer, by analogy, the same power upon the Commonwealth Attorney General in relation to federal offenders. See Martens (No 2), in the context of s 672A of the Queensland Criminal Code (which is, as I have mentioned, comparable to s 140 of the Western Australian Sentencing Act) [92] (Chesterman JA; Muir JA agreeing).
Fourthly, it is necessary, in order to achieve uniformity within Western Australia as to the procedure for dealing with State and federal offences, that persons convicted in the courts of this State of offences against Commonwealth law have the same rights as persons convicted in the courts of this State of offences against Western Australian law. In particular, it is necessary that persons convicted of State offences and persons convicted of federal offences have the same right to present a petition for the exercise of the Royal Prerogative of Mercy and, subject to a favourable exercise of the discretionary power conferred by s 140 of the Sentencing Act, to have his or her whole case heard and determined by this court as if it were an appeal by the offender against conviction. See Martens (No 2) [94].
Fifthly, my opinion is consistent with the line of authority in the High Court, in the context of federal offences, that s 68(2) has operated upon various provisions of State law in relation to criminal appeals. See, for example, Peel, Rohde, Geeand LK.
Sixthly, my opinion is consistent with the majority decision of the Court of Appeal of Queensland in Martens (No 2) and the unanimous decision of the Full Court of the Federal Court in Yasmin.
Seventhly, I acknowledge that my opinion is different from the view expressed in Martens (No 1) and the scepticism expressed in Nudd. The view in Martens (No 1) was an obiter dictum. Neither party to the appeal sought to argue the point. No reference was made to the observations in Gee concerning the definition of 'appeal' in s 2 of the Judiciary Act and the historical development of pt X of that Act. The scepticism in Nudd was an obiter dictum and made without reference to relevant decisions of the High Court (notably, the reasoning of Dixon J in Williams [No 2] (560 ‑ 562), as approved by the majority in Peel, and the observations in Gee).

Is the Attorney General entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment following his or her plea of guilty?

Section 140(1)(a) of the Sentencing Act states, relevantly, that the Attorney General may refer to the Court of Appeal a petition for the exercise of the Royal Prerogative of Mercy 'in relation to an offender convicted on indictment … for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be)'.
I am satisfied that those words are of sufficient breadth to include a judgment of conviction entered by a superior court following a plea of guilty. The expression 'convicted on indictment' is used in contradistinction to 'convicted summarily', and not 'convicted without trial following a plea of guilty'. The difficulty which an appellant must confront in persuading an appellate court to set aside a conviction based on a plea of guilty does not require or justify a restrictive approach to the ordinary and natural meaning of the language embodied in s 140(1)(a). See, to similar effect, the decision and reasoning in Re MJR [2000] VSCA 44; (2000) 1 VR 119 [3] (Winneke P, Batt JA & Hampel AJA) and the cases there cited.

I will preface my consideration of this issue with a summary of the relevant principles of statutory construction.
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
Where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726 (Griffith CJ); R v Wheeldon [No 1] (1978) 33 FLR 402, 405 ‑ 406 (Bowen CJ, Blackburn & Fisher JJ); Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 ‑ 724 (Kirby P); Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42] (Muir J); Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] (Buss JA).
Section 140(1)(a) of the Sentencing Act states, relevantly, that a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment 'may be referred by the Attorney General to the Court of Appeal … for the whole case to be heard and determined as if it were an appeal by the offender against the conviction'. By s 140(2), this court must give effect to the referral.
In my opinion, pt 19 of the Sentencing Act, and the provisions of the Criminal Appeals Act which confer rights of appeal in relation to an offender convicted on indictment, comprise an overlapping legislative scheme.
As I have mentioned, s 23(1) of the Criminal Appeals Act conferred on the appellant a right to appeal to this court against his conviction, but the appellant did not exercise that right.
It is well established that an offender is not entitled under the Criminal Appeals Act to appeal more than once against the same conviction. See JS v The State of Western Australia [2014] WASCA 177 [3] ‑ [6] (McLure P; Buss & Mazza JJA agreeing); Ascic v Bedworth [2015] WASCA 109 [6] (McLure P; Buss & Mazza JJA agreeing).
In R v Gunn (No 1) (1942) 43 SR (NSW) 23, Jordan CJ (Davidson J agreeing) referred to s 26(a) of the Criminal Appeal Act 1912 (NSW) (which is comparable to s 140(1)(a) of the Western Australian Sentencing Act) and commented, obiter dicta, that there was 'a good deal to be said for the view that [s 26(a)] is designed to meet the case of a convicted person who has refrained from appealing and has instead petitioned the Crown for clemency' and, in such a case, 'the Executive may think it desirable that a right of appeal which has not been availed of should be resorted to, and [s 26(a)] enables it to give effect to its view' (25).
In Von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110, the applicant had been convicted of murder. His appeal against conviction was dismissed. Subsequently, he presented a petition to the Governor of South Australia praying for mercy and requesting that the matter be referred to the Full Court of the Supreme Court of South Australia pursuant to s 369(a) (now s 369(1)(a)) of the Criminal Law Consolidation Act 1935 (SA). The provisions of s 369 are comparable to s 140 of the Western Australian Sentencing Act. The Attorney General advised the Governor (through the Premier) to take no further action on the petition. The Attorney declined to refer the matter to the Full Court. The applicant brought proceedings seeking judicial review of the Attorney's decision. The Full Court of the Supreme Court of South Australia (Prior, Lander & Wicks JJ) held that the court had no power to review the exercise of the Attorney's discretion not to refer the matter to the Full Court pursuant to s 369(a). Lander J observed, obiter dicta, that s 369(a) assumed that all appeals available to a petitioner had been exhausted:
What, then, is the policy or scope and objects of s 369. The section has no application unless a petition for mercy has been presented to the Governor. It therefore assumes that the petitioner has exhausted all of his or her legal rights and that all appeals have been exhausted and the conviction and the sentence must stand according to law.
The section further assumes that there may be circumstances, notwithstanding that all appeals have been exhausted, where it would be appropriate to refer this matter back to the court for further hearing as an appeal. In that respect the section perhaps contemplates that fresh evidence has emerged which might make the conviction unsafe or unsatisfactory. It also contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction.
The policy, purpose and object of s 369 is to ensure, so far as practicable, that no person is the victim of a miscarriage of justice.
The section has been included to allow for circumstances of the kind to which I have referred so that even if a person has exhausted all that person's rights of appeal, that person will not be the victim of a miscarriage of justice, if later circumstances show that the conviction should not stand for any reason including that it is unsafe and unsatisfactory.
It is within that policy and purpose that the Attorney-General must act. When a petition is presented to the Governor and referred to the Attorney‑General, apart from advising on the question of mercy, generally, the policy and purpose of s 369 is to have the Attorney-General apply his mind as to whether or not it would be appropriate to invoke the court's jurisdiction yet again, notwithstanding that the appeal process has been exhausted, so that the court may determine whether, in any way, there has been a miscarriage of justice in relation to that petitioner (138 ‑ 139). (emphasis added)
In Pepper, Muir JA (de Jersey CJ agreeing) commented, obiter dicta, that the powers conferred by s 672A of the Queensland Criminal Code (which are comparable to the powers conferred by s 140 of the Western Australian Sentencing Act) 'are enlivened by the presentation of a petition for the exercise of the pardoning power after conviction, and in the normal case, after unsuccessful appeal', and consequently 'the powers are distinctive in nature and are likely to be exercised infrequently' [12] (emphasis added).
In Yasmin, Kenny, Robertson and Mortimer JJ suggested, obiter dicta, that the powers conferred by s 140 are only exercisable after an offender has exercised his or her rights of appeal:
For reasons we have outlined above, we can put to one side any consideration that the nature of the power in s 140 is personal and non‑delegable. Aside from that, the remainder of the features of the mercy prerogative identified by the respondent can be generally accepted as features of the discretionary power in s 140. Indeed, since the lodgment of a mercy petition is the occasion on which all these powers arise, it is appropriate to see those features as contextual features the powers have in common. As much as the mercy prerogative itself, the referral power becomes available, and relevant, only after the exhaustion of all other avenues for which the criminal justice system provides.
Nevertheless, and as Pt 19 of the Sentencing Act demonstrates, the referral power in s 140 forms part of the criminal justice system, and does not stand outside it. It is an avenue to a further appeal for a person who has been convicted and who has exhausted the remainder of the processes in that system. Like a pardon it exists to cure, or remedy, any miscarriage of justice. However it seeks to do so by a different route: not by an investigation and decision occurring within the executive branch, and which in substance delivers something less than an acquittal if successful; but rather by a public judicial process where a person is able to secure an outcome which involves a conclusion that a person did not commit the crime [86] ‑ [87]. (emphasis added)
I am of the opinion, for the following reasons, that the Attorney General is entitled to refer to this court pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment even though the offender has not exercised the relevant right of appeal conferred by s 23(1) of the Criminal Appeals Act.
First, nothing in the text of s 140, read and construed in the context of pt 19 of the Sentencing Act as a whole and the provisions of the Criminal Appeals Act which confer rights of appeal in relation to an offender convicted on indictment, relevantly circumscribes the Attorney General's power under s 140, upon receiving a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, to refer the petition to this court for the whole case to be heard and determined as if it were an appeal by the offender against the conviction. In particular, nothing in the statutory text limits or constrains the Attorney General's power to refer a petition to this court if the offender has not exercised the right of appeal conferred by s 23(1) of the Criminal Appeals Act.
Secondly, it is plain that s 140 confers on the Attorney General a broad discretion as to whether to refer a petition to this court. Nothing in the text of s 140, read and construed in the context of pt 19 of the Sentencing Act as a whole and the provisions of the Criminal Appeals Act which confer rights of appeal in relation to an offender convicted on indictment, relevantly confines the Attorney General's discretion by reference to any temporal or procedural limitation. The failure of an offender to exercise an available right of appeal would, no doubt, be a relevant consideration which the Attorney would be entitled to take into account in determining whether, in the exercise of his or her discretion, to refer the petition to this court. But nothing in s 140, read and construed in the applicable statutory context, precludes the Attorney from exercising his or her discretion favourably to an offender even though the offender has not exercised an available right of appeal under s 23(1) of the Criminal Appeals Act.
Thirdly, as Cooke P, Gault and McKay JJ observed in Burt (681), the Crown prerogative, as developed at common law, has become an integral element in the criminal justice system. The regime in s 140 is, in effect, both a substitute for, and an alternative to, the invocation and exercise of the Crown prerogative at common law. See Mallard [6]. The judicial function conferred by s 140(1)(a) is enlivened upon a petition being referred to this court under s 140(1)(a). Section 140 is a remedial provision. It is therefore to be given a liberal interpretation, so as to give the fullest relief which the fair meaning of its language will allow. See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J); Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [42] ‑ [44] (Gummow & Hayne JJ). All of those factors, together with the broad discretionary character of the Attorney General's power under s 140, favour a beneficial construction of s 140, and point against any implication which limits or constrains the statutory text.
Fourthly, pt 19 of the Sentencing Act replaced s 21 of the Criminal Code (WA).
Section 21 provided:
Nothing in this Code affects Her Majesty's royal prerogative of mercy, but the Attorney General on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either ‑
(a)refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted; or
(b)if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Attorney General with their opinion thereon accordingly. (emphasis added)
Although the words 'at any time' in s 21 of the Criminal Code were omitted from s 140 of the Sentencing Act, no temporal or procedural limitation was incorporated in s 140.
Fifthly, the Crown prerogative was recognised and developed at common law before the creation of statutory rights of appeal. In England, before the introduction of the Criminal Appeal Act 1907 (UK), there was no right of appeal from either a conviction or an acquittal of an accused who had been tried on indictment. There were methods of review available. These comprised reserving a case for the Court for Crown Cases Reserved, applying for a new trial where the proceedings were tried in the Court of Queen's Bench and appealing by means of a writ of error to a court of error. See Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47 (Mason & Brennan JJ). At common law, where a convicted person was considered to have been wrongly convicted or innocent, the person was pardoned and not acquitted of the crime. See Mallard [4]. A pardon at common law left unaffected the fact of a conviction. See R v Foster [1985] QB 115, 130 (Watkins LJ delivering the judgment of the Court of Appeal); Ex parte Bentley (356). The prerogative's legal foundation and operation are therefore materially different from the statutory framework embodied in s 140.
Sixthly, I acknowledge that my opinion differs from the views in Von Einem and Yasmin. However, those views were obiter dicta and were expressed in the context of an application by the petitioner for judicial review of the Attorney General's decision not to refer (in the case of Von Einem) and not to consider (in the case of Yasmin) a petition. Neither Von Einem nor Yasmin was concerned with the issue that arises in the present case, namely whether it is competent for the Attorney General to refer a petition to the court without the petitioner having exhausted his or her statutory rights of appeal.

The State jurisdiction of the District Court to hear and determine charges of State offences does not relevantly extend to a charge against a person who was a child when the offence is alleged to have been committed. It follows that the District Court's 'like' federal jurisdiction did not extend to trying and convicting the appellant of an offence against s 232A of the Migration Act if he was under the age of 18 years at the time of the alleged offence.
Therefore, the federal jurisdiction of the District Court in this case depended upon the appellant being at least 18 years of age on 15 - 18 December 2009, when the indictment alleged the offence to have been committed.

Jurisdiction of this court on the reference

Section 68(2) of the Judiciary Act gives this court federal jurisdiction to hear and determine appeals arising out of the conviction of Commonwealth offences. The term 'appeal' includes 'any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge'.[11] The term 'appeal' in s 68(2) has been broadly construed to include a number of different kinds of statutory appeal and review.[12] A referral of a petition under s 140 of the Sentencing Act for the whole case to be heard and determined as if it were an appeal fits within the ordinary meaning of the definition of 'appeal' in the Judiciary Act. Consistently with the general approach to the construction of s 68(2), that section gives this court federal jurisdiction to hear and determine the appellant's case as if it were an appeal against conviction.
[11] Section 2 of the Judiciary Act.
[12] R v Gee [2003] HCA 12; (2003) 212 CLR 230 [13], [53] ‑ [65]; R v LK [2010] HCA 17; (2010) 241 CLR 177 [20], [86].

Authority of the Commonwealth Attorney General to refer the petition

We agree with the Full Federal Court in Yasmin, and Buss P in the present case, that s 68(1)(d) of the Judiciary Act operates to apply s 140 of the Sentencing Act to the appellant. We also agree that, although it refers to the State Attorney General, s 140 is applied by analogy to authorise the Commonwealth Attorney General to refer a petition relating to a conviction for a Commonwealth offence to this court.[13]
[13] Williams v The King [No 2] (1934) 50 CLR 551, 561 - 562; Peel v The Queen (1971) 125 CLR 447, 457, 468 ‑ 469; Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119, 124 - 125, 126 - 127.
The appellant has not exhausted his rights of appeal against his conviction. He has never instituted an appeal against conviction, and could still seek an extension of the time in which to do so. However, in our view, there is no warrant for limiting the Attorney General's authority to refer a petition to cases where a petitioner has exhausted his or her rights of appeal. That is so notwithstanding the contrary statement in Yasmin that:[14]
As much as the mercy prerogative itself, the referral power becomes available, and relevant, only after the exhaustion of all other avenues for which the criminal justice system provides.
[14] Yasmin [86].
That statement was not a necessary part of the court's decision in that case. It was made in the course of rejecting a submission that the 'unreviewability' of the prerogative informed the construction of s 140 of the Sentencing Act. The constructional question which the court was considering was whether s 140 imposed a duty on the Attorney General to consider and determine whether or not to refer a petition to the court.
The Full Court's statement that the prerogative and statutory powers only became available when other avenues had been exhausted was not supported by reference to any authority. We have not been able to locate any authority which supports the proposition.[15] A review of the practice undertaken in 1960 provided examples of the exercise of similar reference powers to that contained in s 140 where there had been no appeal.[16] Further, the question of whether the prerogative of mercy could be invoked while rights of appeal remained extant did not arise when the prerogative was developed, prior to the enactment of statutory rights of appeal from criminal convictions.[17]
[15] Von Einem v Griffin (1998) 72 SASR 110, 138 - 139 refers to assumptions attributed to a section equivalent to s 140 but does not state that the power cannot be exercised other than in the assumed circumstances.
[16] Alex C. Castles, 'Executive References to a Court of Criminal Appeal' (1960) 34 Australian Law Journal 163, 166 - 167.
[17] See Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [4].
Even if the Royal Prerogative of Mercy could not be exercised while unexhausted rights of appeal remained, it would not follow that the power in s 140 was similarly confined. The exercise for which s 140(1)(a) provides is effectively both a substitute for, and an alternative to, the invocation and exercise of the prerogative.[18] The power conferred by s 140 is not confined by limits on the prerogative power. For example, it has been held that the prerogative power to grant a pardon does not extend to quashing a conviction.[19] By contrast, provision in s 140(1)(a) for the whole case to be heard and determined as if it were an appeal against conviction encompasses the power to set aside a conviction and substitute an acquittal.[20]
[18] Mallard [6].
[19] R v Foster [1985] QB 115, 126 - 130; R v Secretary of State for the Home Department; ex parte Bentley [1994] QB 349, 356 ‑ 358; see also Mallard [4] and Kelleher v Parole Board (NSW) (1984) 156 CLR 364, 367, 371 - 372, 375 - 376, 380 - 381.
[20] Under s 30 of the Criminal Appeals Act 2004 (WA).
Nothing in the language, context, history or purpose of s 140 justifies confining the Attorney General's power to refer a petition to cases where avenues of appeal have been exhausted. The fact that an avenue of appeal remains will usually be a powerful discretionary reason for an Attorney General to decline to refer a petition to the court. The Attorney General may rightly consider it undesirable for the process provided for by s 140 to be used as a substitute for the exercise of statutory rights of appeal. However, the fact that the appellant had never appealed against his conviction, and could still seek an extension of time in which to do so, did not deprive the Attorney General of the power to refer the appellant's petition to this court.

The District Court lacked jurisdiction in this case

This court's jurisdiction having been regularly invoked, we must apply the legal principles appropriate to criminal appeals to the whole case, comprising the admissible evidence tendered at trial and on appeal.[21] The legal principles are found in s 30 of the Criminal Appeals Act. Relevantly, the court must allow the appeal if in its opinion there was a miscarriage of justice,[22] subject to the proviso that the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred.[23] If the court allows the appeal, it must set aside the conviction and, in the circumstances of the present case, either order a new trial of enter a judgment of acquittal of the offence.[24]
[21] Mallard [10] - [13].
[22] Section 30(3)(c) of the Criminal Appeals Act.
[23] Section 30(4) of the Criminal Appeals Act.
[24] Section 30(5)(a) and (b) of the Criminal Appeals Act.
Had the appellant pleaded that the District Court lacked jurisdiction to deal with him or the charge,[25] the District Court would have been required to try that issue.[26] Although such a plea was anticipated rather than actually entered, the question was tried by the District Court. In that trial, the Crown bore the onus of proving the facts establishing the District Court's jurisdiction on the balance of probabilities.[27] The question was whether the court was satisfied on the balance of probabilities that the appellant was under the age of 18 years on 15 - 18 December 2009, when the offence was alleged to have been committed.
[25] Under s 126(1)(a) of the Criminal Procedure Act, applied by s 68(1) of the Judiciary Act.
[26] Under s 127(2) of the Criminal Procedure Act, applied by s 68 of the Judiciary Act.
[27] Thompson v The Queen (1989) 169 CLR 1, 12 - 13, 39; see also Stoykovski v M (a child) [2002] WASCA 193.
The primary judge's observations of the appellant did not assist him. The primary judge principally relied on the evidence of Dr Vincent Hok Sang Low, a consultant radiologist. Dr Low assessed the appellant's 'skeletal maturity' by comparing an x-ray of the appellant's left hand with findings reported in a study entitled Radiographic Atlas of Skeletal Development of Hand and Wrist (Atlas). Dr Low assessed the probability of the appellant being aged 18 years or over as 21.79 % plus a minor adjustment for the delay in the x‑ray.
Dr Low's evidence has, as the Crown now accepts, been entirely discredited. The Crown accepts that the use of wrist x-ray evidence to determine age is unreliable, and Dr Low's evidence should not be relied upon. The Crown accepts the views explained in a report of Dr James Christie, a diagnostic radiologist, tendered in this appeal.
Dr Christie explains that bone age estimation is a well-established and commonly used technique for estimating skeletal maturity in children with potential growth problems. However, skeletal maturity has an inconsistent relationship with chronological age, and is only used as part of an assessment of a child. There is no data confirming that it is valid to use an assessment of skeletal maturity in reverse to assess chronological age. There is significant opinion in the medical world that it is inappropriate to make age determinations based only on such an assessment. Further, the source data in the Atlas was not derived from, and has never been evaluated against, an Indonesian population. It was not possible, based on the x-ray of the appellant's left hand, to come to any conclusion as to whether the appellant was less than or greater than 18 years of age at the time of the x-ray examination.
For the reasons Dr Christie explained, Dr Low's assessment of x-rays of the appellant's hand did not provide any reliable indication of whether the appellant's age was over or under 18 years at the time of the alleged offence.
The appellant's evidence at trial was confused and unsatisfactory. At one point during cross-examination, without the use of an interpreter, the appellant said he was born on 12 October 1990 (which would have made him 18 at the date of the alleged offence). When the question was repeated using an interpreter, the year was corrected to 1996. The appellant said he referred to 1990 because the federal police had told him that was when he was born. The overall tenor of the appellant's evidence was that he was born in October 1996.
The court now has documentary evidence before it, which is not contradicted by evidence adduced by the Commonwealth, indicating that the appellant was born in or around October 1996. If he was born then he would have been only 12 years old at the date of the alleged offence.
Much of that material (for example the appellant's birth certificate) post-dates the alleged offence, and its reliability is open to question for that reason.
However, one set of documents, the authenticity of which the Crown does not challenge, points strongly to the appellant being under the age of 18 years at the time of the alleged offence. The appellant's school records predate his being charged, and indicate he was born in October 1996. They show he started grade 1 in 2001/2002 and attended to grade 6 in 2006/2007. If the appellant was 18 years old on 15 December 2009, then he would have started primary school at age 10 and finished grade 6 at age 15. This seems unlikely. Those records corroborate the appellant's evidence at trial that he started school in year 1 and left at the age of 12 during year 7.
The appellant's mother's affidavit also indicates that he was born in October 1996. The Crown did not seek to cross-examine her on that affidavit.
We are satisfied the whole of the evidence before this court establishes, on the balance of probabilities, that the appellant was under the age of 18 on 15 - 18 December 2009. Even if that conclusion cannot be positively reached, the evidence does not establish on the balance of probabilities that the District Court had jurisdiction. Given the onus of establishing jurisdiction rests with the Crown, the proper conclusion is that the District Court did not have jurisdiction to deal with the appellant on indictment.
Because the conviction was entered by a court without jurisdiction to do so, it should be set aside.[28] It is unnecessary to determine whether s 169 of the Criminal Procedure Act is picked up and applied to these proceedings in federal jurisdiction. Assuming s 169 applies, it does not derogate from the authority of this court to allow an appeal and set aside a conviction where a miscarriage of justice is established, including by reason of an erroneous assumption of jurisdiction by the primary court.
[28] Adlem v The Queen [1999] WASCA 1; (1999) 20 WAR 419.
In this case, the erroneous assumption of jurisdiction did give rise to a miscarriage of justice, despite there being no contest as to the appellant's guilt of the offence before this court. Because the District Court assumed a jurisdiction which it did not have, the appellant was dealt with as an adult rather than a child, including by the application of mandatory minimum penalties which would not have been applicable if he was dealt with in the Children's Court. Further, the application of the sentencing principles contained in the Young Offenders Act 1994 (WA) to the appellant, who played a very minor role in the offence, could not have led to the imposition of a sentence of 5 years' imprisonment with a 3‑year non-parole period in the present case. In those circumstances it cannot be concluded that no substantial miscarriage of justice has occurred.

Appropriate orders

Having reached this conclusion, the appeal should be allowed on grounds which, in effect, assert that the decision of the trial judge that the District Court had jurisdiction was wrong and gave rise to a miscarriage of justice. The appellant's conviction must be set aside. Having done so, the available options for this court under s 30(5) of the Criminal Appeals Act are limited. In the circumstances of this case the court must either order a new trial or enter a judgment of acquittal.
The principles governing the exercise of the discretion to order a new trial were stated in Director of Public Prosecutions (Nauru) v Fowler:[29]
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.
[29] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.
The offence created by s 232A of the Migration Act is very serious, and the absence of challenge to the finding of guilt would ordinarily be a compelling reason for ordering a retrial. Where the prosecution case is strong and the offence serious, there may be a public interest in ordering a retrial even where there is no prospect of any further penalty being imposed. In Spies v The Queen, a retrial was ordered where the corporate fraud case against the accused was strong and it was 'unthinkable' that additional punishment would be imposed if he were convicted on retrial. The plurality noted that:[30]
…members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach the criminal and company law to not escape conviction.
[30] Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 [103].
There is a public interest in convicting persons who commit offences against s 232A of the Migration Act. In addition, the case against the appellant was very strong. He pleaded guilty to the offence. In this court, he did not dispute the facts alleged by the Crown. It would usually be inappropriate to order an acquittal in these circumstances.
However, it is relevant to bear in mind the very limited role which the appellant, who was a child at the time, played in the operation. The level of the appellant's criminal culpability is much less than that of many persons who offend against s 232A of the Migration Act. The objective seriousness of the appellant's alleged offending affects the relative weight to be accorded to the public interest in securing his conviction.
Further, in all the circumstances of the present case, it would be oppressive and unjust to require a re-trial when the appellant has already served his sentence, particularly when the mandatory minimum term was wrongly applied to him. It is not only that no additional penalty could properly be imposed if the appellant were reconvicted and resentenced. The 3 year non-parole period imposed on the appellant, and the 2 years and five months imprisonment which the appellant actually served before his release on licence, were longer than minimum term he would have received if dealt with as a child. It would be oppressive, 5 years after the appellant's release from custody and over 7 years after his alleged offending as a child, to seek to compel the appellant to return to Australia,[31] with the prospect of a period in remand or immigration detention, to again face the charge after he has served a more severe sentence than could properly have been imposed if, as should have been the case, he were dealt with as a child. That oppression would be reduced by the fact that there is unlikely to be a lengthy trial, and the absence of demonstrated prejudice to the appellant from the passage of time.[32] However, the oppressive nature of the exercise would remain.
[31] Of course, to any extent that the appellant is beyond the reach of the Australian authorities, there would be no point in ordering a retrial.
[32] As to the potential significance of these factors see R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [55].
It is relevant that the Crown has indicated that it would discontinue the prosecution if a retrial is ordered.[33] Responsibility for instituting and discontinuing prosecutions on indictment rests with the Director of Public Prosecutions rather than the courts.[34] Ordinarily, the court would order a retrial and leave it for the Director to decide whether to file a notice of discontinuance. However, concern that entry of a verdict of acquittal would usurp the Director's functions[35] is reduced when she indicates that a prosecution will be discontinued if a retrial is ordered. In addition, there is no question of usurping the role of the jury,[36] which would not try a case in the Children's Court.
[33] See Griffiths v The Queen (1994) 69 ALJR 77, 81, 82; McHenry v The State of Western Australia [No 2] [2010] WASCA 71 [41].
[34] Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 [20].
[35] R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 [27]; Gilham v The Queen [2012] NSWCCA 131 [649]; Eastman v Director of Public Prosecutions (ACT) (No 2) [2014] ACTSCFC 2; (2014) 9 ACTLR 178 [270], [301].
[36] Taufahema [51].
In all the unusual circumstances of this case, the appropriate order is that a verdict of acquittal be entered.

For these reasons, we agree with the orders proposed by Buss P.