1 PRIOR J. This is an application for judicial review referred to the Full Court.
2 The applicant is serving a sentence of life imprisonment for murder. He was found guilty of that crime on 5 November 1984. An appeal against that conviction was dismissed in this Court in March 1985. An application for leave to appeal to the High Court was refused.
3 In 1997, the applicant’s solicitors became aware of material which had been in the possession of the police at the time of the trial, which had not been disclosed to the defence. It is alleged that the information should have been disclosed and that the presentation of the applicant’s case at trial was prejudiced by the non-disclosure. The information relates mainly to police surveillance of the applicant and a statement of a person who claims to have seen the murder victim, Richard Kelvin, in Rundle Mall at a time inconsistent with the prosecution case as it was presented at trial. It is said that the failure to disclose led to a material irregularity in the trial process. It was also said that there has been a miscarriage of justice by reason of the non-disclosure of the information.
4 A Petition was presented to the Governor praying for the exercise of the prerogative of mercy. It also requested that the matter be referred to the Full Court pursuant to s369(a) of the Criminal Law Consolidation Act 1935. S369 provides:
“Nothing in this Part affects the 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 information 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 Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or
(b).... if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the Petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly.”
5 The Attorney-General sought an independent opinion on matters raised in the Petition. That was from a former judge of the District Court. She was of the opinion that the verdict was not unsafe or unsatisfactory against the non-disclosure of material and in light of the applicant’s answer to the prosecution case. The Attorney also sought advice from the Solicitor-General. Comments were also made by the Director of Public Prosecutions. The Attorney-General accepted the advice of the Solicitor-General that no further action should be taken in respect of the Petition. The Premier was…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Von Einem v Griffin [1998] SASC 6858
Case
[1998] SASC 6858
Decision Date
CaseChat Overview and Summary
The case of Von Einem v Griffin and Olsen involved an application for judicial review brought by BS Von Einem, a prisoner serving a life sentence for murder, against the Attorney-General of South Australia and the Premier of South Australia. Von Einem sought relief from the Full Court of the Supreme Court of South Australia in relation to the advice given to the Governor of South Australia by the Attorney-General not to exercise the prerogative of mercy in relation to Von Einem’s case. The application was referred to the Full Court by a Judge of this Court. The applicant sought declarations and orders quashing the advice given to the Governor, a declaration that the Attorney-General had failed to apply the correct legal test in advising the Governor, a declaration that the Attorney-General had failed to recognise and identify substantial procedural defects in the trial process and flaws in the forensic evidence, and a declaration that the Attorney-General had failed to accord natural justice to the applicant. The Full Court dismissed the application. In doing so, the Court found that the prerogative of mercy was not subject to judicial review and that the statutory powers conferred on the Attorney-General in s369 of the Criminal Law Consolidation Act were not subject to judicial review. The Court also found that the Attorney-General’s decision not to refer the applicant’s case to the Full Court was not unreasonable and did not amount to an abuse of power.