Von Einem v Griffin
[1998] SASC 6858
•23 December 1998
VON EINEM v GRIFFIN AND OLSEN
[1998] SASC 6858
Full Court: Prior, Lander and Wicks JJ
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 so informed and the Governor advised. The applicant’s solicitors were informed by the Official Secretary to the Governor that the Petition having been referred to the Governor’s Ministers, His Excellency was advised to take no further action in respect of the Petition as it was not reasonably possible that a miscarriage of justice had occurred. The applicant’s solicitors were advised that His Excellency had accepted that advice.
6 In these proceedings, the applicant seeks an order that the Attorney-General’s decision to advise the Governor to take no further action in respect of the Petition and not refer it to this Court be quashed.
7 The applicant also seeks a declaration that in advising the Governor to take no further action in respect of the Petition, as it was not reasonably possible that a miscarriage of justice had occurred, the Attorney had erred. It is said that there was a failure to apply the correct legal test. It is also said that the Attorney’s advice failed to recognise and identify substantial procedural defects in the trial process and flaws in the forensic evidence adduced by the prosecution at the trial.
8 Further complaints are that the advice failed to take into account relevant considerations and only took into account irrelevant considerations. It is claimed that the applicant was denied natural justice in the decision arrived at by the Attorney. It is also said that there is no sufficient justification for the conclusion that there is no reasonable possibility that a miscarriage of justice has occurred. On the matters set out in the Petition, there is in any event at least a reasonable possibility that a miscarriage of justice has occurred. This Court is also asked to say that the Attorney-General “has unfairly and wrongfully failed to exercise the discretion to refer the Petition for Mercy to the Full Court” and order the Attorney to refer the Petition to the Court.
9 Ninety years ago, the High Court affirmed a common law principle that “no court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy”[1]. That decision has not been expressly overruled. Its authority has been acknowledged in later decisions of the High Court and courts in New Zealand[2]. To the extent that by these proceedings the applicant seeks an order with respect to the advice to the Governor to take no further action in respect of the Petition for mercy, it must be refused upon that authority. So too must the request for a declaration relating to the advice to the Governor.
[1] Horwitz v Connor (1908) 6 CLR 38 at 40
[2] R v Toohey ex parte Northern Lands Council (1981) 51 CLR 170 at 186 and 261; Burt v Governor-General (1989) 3 NZLR 64 (Greig J) and (1992) 3 NZLR 672 (Court of Appeal)
10 The Petition incorrectly asked the Governor to exercise the prerogative of mercy by referring the matter to the Full Court. S369(a) of the Criminal Law Consolidation Act was referred to in the prayer. The prerogative of mercy for the Governor, on the advice of the Executive Council, is confined to a power of pardon or remission of sentence. Reference to this Court is not for the Governor at all. It is for the Attorney-General. Reference is not of the Petition but the whole case or points arising in the case.
11 Essentially this Court must consider whether the statutory powers conferred on the Attorney-General “on the consideration of any petition for the exercise of Her Majesty’s mercy” are subject to judicial review. The Attorney says that he did himself consider whether to refer the Petition to the Full Court. He decided not to because he accepted the Solicitor‑General’s analysis. He concurred with the Solicitor-General’s views. It did not seem to him that there was a reasonable possibility that a miscarriage of justice had occurred.
12 The Attorney’s powers of referral in s369(a) and s369(b) are expressed to be referrable to a petition for the exercise of Her Majesty’s mercy. In Burt v Governor-General[3], Cooke P referred to the “traditional view” that a refusal to exercise the prerogative of mercy is not reviewable in any court. He quoted judicial statements by Lord Diplock in de Freitas v Benney[4], and Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service[5] then refered to Horwitz v Connor[6] and three other cases, saying that “this line of cases shows unwillingness to review either a refusal to exercise the prerogative or a refusal by a Minister to exercise a statutory power ancillary to the prerogative, such as a power to refer a petition to a court”[7].
[3] (1992) 3 NZLR at 676 - 678
[4] [1976] AC 239 at 247, 248
[5] [1985] AC 374 at 418
[6] (1908) 6 CLR 38
[7] (1992) 23 NZLR 678
13 Horwitz was a case dealing with the discretion of the Governor in Council in the exercise of the prerogative of mercy. In Ex parte Kinally[8], the Divisional Court refused leave to move for an order of mandamus to compel the Home Secretary to refer the applicant’s case to the Court of Criminal Appeal. The court held that the Home Secretary had a discretion whether to exercise his prerogative to refer a matter to the Court of Criminal Appeal and that if he decided not to make a reference, the court would not compel him to do so. The applicant had petitioned the Home Secretary on numerous occasions under s19 of the Criminal Appeal Act 1907. That section is, in substance, the same as s369. The other two cases cited by Cooke P are cases involving attempted civil process denied on the grounds that the Minister’s discretion was absolute. In Hanratty Lord Denning denied that the Home Secretary owed a duty of care with respect to the exercise of the “high prerogative of mercy”[9].
[8] (1958) Crim LR 474
[9] Hanratty v Lord Butler of Saffron Waldon [1971] 115 SOL J 386; Leitch v Secretary of State for Scotland [1982] SLT (Sh Ct) 76
14 The Attorney’s powers are expressed to be “ancillary to the prerogative”. The powers are powers of reference on Petitions of Mercy as the heading to the section still proclaims. Legislative schemes have changed elsewhere, particularly in England[10]. It seems to me that to allow judicial review in this case would involve intrusion by the court into an executive sphere not properly severed from but indeed referrable to the prerogative of mercy[11]. A more recent approach is to say that review of the Attorney’s powers is nothing more than review of a statutory discretion with respect to which there is not the reluctance that prevails with respect to a review of the prerogative[12]. In R v Toohey ex parte Northern Land Council the High Court confirmed the existence of a power to review the exercise of statutory powers by the Executive for alleged improper purposes. Prerogative powers were not in issue. There was however some discussion of the basis of earlier authority which had treated the actions of the Governor or other Vice Regal representatives as immune from judicial review. Absent a clear majority view with respect to the direct authority of Horwitz, this Court must adhere to the propositions of law for which that case stands as authority notwithstanding acknowledgment from some of the justices in Toohey that the absence of a power to review the exercise of prerogative powers might be explained on the basis that the subject matter involved was non-justiciable or because no rights were affected, or because there was no duty to exercise the relevant prerogative discretion which had no precise legal limits in terms of scope, purpose or criteria for exercise. Whilst Mason J thought that a justiciable exercise of prerogative power can be subject to judicial review[13], other justices made a clear distinction[14]. Toohey does not overrule Horwitz. Fifty years after Horwitz a powerful English court denied the reviewability of a statutory power ancillary to the prerogative[15]. The approach of the House of Lords in Council of Civil Service Unions v Minister for Civil Service[16], is to have judicial review applicable to the exercise of prerogative or common law powers provided it relates to a public law matter and the subject matter is justiciable. That approach has not been the subject of an express decision in the High Court. There are decisions of several Australian courts accepting the CCSU approach. In this State, in Blyth Hospital v SA Health Commission[17], King CJ referred to the fact that certain types of decisions by the executive government are subject to review by the courts. His view was that the review occurs “irrespective of whether it is made in the exercise of a power derived from statute, common law or the prerogative”[18]. The Chief Justice went on to say that there must be a wide range of executive government decisions based upon policy and political considerations which are not subject to judicial review and which are not subject to a duty to provide persons affected thereby an opportunity to be heard. Paying due respect to the views which favour judicial review being available with respect to the exercise of a statutory power, even if related in some way to the prerogative and assuming that judicial review is available with respect to the Attorney’s s369 powers, it must needs be remembered that judicial review is concerned not with the decision but with the decision-making process[19]. It is “concerned with the merits in, at best, no more than a most limited way”[20].
[10] See for example Criminal Appeal Act 1968, s16, s17; Criminal Appeal Act 1995, s3, s8, s9, s10, s14, s15, s16
[11] Compare R v Toohey ex parte Northern Land Council (1980) 151 CLR 170 at 215
[12] See Toohey at 219 per Mason J
[13] 155 CLR 219 - 221
[14] See Gibbs and Aickin J at 186 and 261
[15] Lord Goddard CJ, Cassels and Diplock JJ in Kinally
[16] [1995] AC 374
[17] (1988) 49 SASR 501
[18] 49 SASR 501 at 509
[19] Chief Constable of North Wales v Evans [1982] 1 WLR 1155 at 1173; Attorney-General v Quinn (1989) 170 CLR 1 at 35 - 36
[20] Burt v Governor-General (1992) 3 NZLR at 681; Attorney-General v Quinn (1989) 170 CLR 1 at 23, 53 - 54 and 66
15 The Attorney is said to have unfairly and wrongfully failed to exercise the discretion to refer the plaintiff’s Petition for Mercy to the Full Court pursuant to s369. This Court cannot grant the declaration sought in these terms for the reasons already mentioned. It is not the Petition that is referred to this Court in the exercise of a statutory power. It is the applicant’s whole case or points arising in it. No declaration of the kind sought in par5 of the application is therefore appropriate. The other order sought against the Attorney, is an order requiring him to refer the Petition for Mercy to the Full Court pursuant to s369.
16 There is still no clear authority in this country for the issue of an order in the nature of mandamus against the Crown with respect to or ancillary to the prerogative of mercy, nor with respect to a statutory power as opposed to a statutory duty[21].
[21] Barton v The Queen (1980) 147 CLR 75 at 94 - 95
17 The approach in Horwitz, Kinally and Burt is against the power to compel the reference. If bad faith or improper motive were made out, it might be appropriate to quash the improper exercise and, at most, call for the consideration of the exercise of the discretion afresh. The Solicitor-General conceded that limited declaratory relief might be appropriate though mandatory orders not, given the approach in certain recent cases[22].
[22] FAI Insurance Ltd v Winneke (1982) 151 CLR 342 at 351, 373, 388, 404 - 405, 419 - 421; cp Dohrmann v Attorney-General (Vic) [1995] 1 VR 274
18 There is no proper basis upon which any of the orders sought in the first six paragraphs of the application can be made. It remains to consider whether, pursuant to the request for such further or other orders as the court sees fit, the court should consider declaring that in refusing to refer the applicant’s case to the Full Court the Attorney had acted unfairly and/or wrongfully. The more is this so because of the matters raised in the amended grounds for judicial review in which it was sought to complain of the decision made and the tests used to arrive at that conclusion.
19 It was part of the applicant’s submissions that the Attorney-General failed to have regard to legitimate expectations of the applicant. These included being informed of the effect of any advice or opinion sought and considered. It was said that the Attorney failed to accord natural justice to the applicant by taking that advice rather than seek it from this Court. Indeed it was put that the criticism in the advice given to the Attorney by the Solicitor-General of the failure to disclose statements and other material to the applicant’s legal advisers before trial gave rise to a legitimate expectation of referral to this Court.
20 A legitimate expectation cannot be acknowledged. Yet it must exist to give rise to some form of relief by way of judicial review. A legitimate expectation has to be identified with some right of the applicant. The only possible “right” that the applicant had was for the Attorney to consider the exercise of his s369 power. No expectation as to how the exercise of his discretion would be exercised was created by any act of the Attorney[23]. The presence of an absolute discretionary power denies a legitimate expectation as to its exercise[24]. It was also put that it was appropriate, in these proceedings, to declare that the Attorney’s decision that the petition raised “no reasonable possibility of a miscarriage of justice” was so unreasonable as to constitute an error requiring judicial review. I cannot accept that the material before the court begins to establish that, whilst acting in good faith, the decision of the Attorney was so unreasonable, on the material and advice before him, that no reasonable person could ever have come to it[25].
[23] Compare FAI Insurance Ltd v Winneke (1982) 151 CLR 342, where applicant for a licence renewal had a legitimate expectation of a hearing before the renewal was refused on the basis of information unknown to the applicant.
[24] South Australia v O’Shea (1987) 163 CLR 378
[25] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 230
21 It was also said that certain factual matters were incorrect in the advices that the Attorney received and acted upon. This Court should therefore intervene and, at least, declare what the Attorney should have done and what tests he should have applied. I am not satisfied that any declarations of that kind should be made absent unfairness in the decision making process.
22 So far as it is complained that there was a denial of natural justice, the fundamental demand with respect to it is simply the duty to act fairly[26]. That duty relates to procedural obligations alone[27]. It can hardly be said that the Attorney has failed to listen to both sides[28]. The only complaint that might be maintained with respect to any obligation to act fairly is that the Attorney did not give the applicant’s advisers an opportunity to respond to the material considered by him after the receipt of the Petition. No right of reply can be acknowledged absent reliance upon information that the applicant was unaware of[29]. I doubt that the opinions and advice proffered after the petition properly attract a right of reply. The applicant was heard by the Petition itself[30]. The consideration of the Petition was not shown to be for an improper purpose or other than in good faith with respect to the relief sought. Improper purpose is not involved in the complaints about legal tests and failures to recognise defects and flaws. Judicial review cannot be invoked to impose particular tests in the proper exercise of a wide discretion. None of the orders sought can be made nor any declaration that involves a finding of improper purpose or acting unfairly.
[26] Kioa v West (1985) 159 CLR 550 at 585
[27] See Attorney-General v Quinn (1989) 170 CLR 1 at 53
[28] Kioa v West (1985) 159 CLR 550 at 584
[29] Kioa v West (1985) 159 CLR 550 at 587; South Australia v O’Shea (1987) 163 CLR 378 at 403, 405, 409
[30] South Australia v O’Shea (1987) 163 CLR 378 at 389; Oates v Attorney-General (Cth) (1998) 156 ALR 1 at 12
23 However, the Attorney might well consider looking at the matter again in light of the material now before the court and any further submissions that the applicant might wish to put. To do so would be consistent with the course adopted by the Home Secretary in response to an invitation made by the Divisional Court in R v Home Secretary ex parte Bentley[31].
[31] [1994] QB 349 at 365
24 I am not satisfied that this Court has power to direct the way in which the Attorney should consider the exercise of the discretionary powers he has with respect to the consideration of a petition for the exercise of the prerogative of mercy. The declarations and orders sought should be refused and the application dismissed.
LANDER J.
Introduction
25 This is an application for judicial review which has been referred to the Full Court by order of a Judge of this Court.
26 On 5 November 1984, after a trial in which the plaintiff pleaded not guilty, the plaintiff was convicted of the murder of Richard Dallas Kelvin. He was sentenced to imprisonment for life and a non parole period of thirty-six years was set. He appealed to the Full Court of the Supreme Court against his conviction but that appeal was dismissed. He then sought special leave to appeal to the High Court of Australia against his conviction, but special leave to appeal was refused.
The Petition
27 On 22 December 1997 the plaintiff presented a petition to His Excellency The Governor, Sir Eric Neal. The petition recounted the evidence which was called at trial, the Crown case and the relevant issues at trial.
28 The petition claims that subsequent to the appeal process the petitioner ascertained that material evidence relevant to the issues at trial was in the possession of the police or the prosecuting authorities at the time of his trial. The petition sets out the evidence which is said to have been available to the police or prosecuting authorities which, it is claimed, was not disclosed by either the police or the prosecuting authorities to the plaintiff or the plaintiff’s legal advisers. The petition also claims that fresh scientific evidence, which casts doubt upon the Crown case, has been ascertained since the trial.
29 It is claimed that if the petitioner had been aware of the evidence contained in the documents referred to in the petition and the evidence of the witnesses named in the petition he would have relied upon that evidence as part of his defence. It is also claimed that had the scientific evidence been available to him at the trial he would also have relied upon that evidence.
30 The petition concludes in the following form:
“PRAYER TO YOUR EXCELLENCY
34.... The Petitioner now seeks to put this matter before the Court of Criminal Appeal but the time for doing so has long since expired.
35 On the grounds that it is in the interests of justice and that Your Excellency’s intervention is necessary to avoid a substantial miscarriage of justice and to redress a justifiable sense of grievance the Petitioner seeks that this Petition be granted.
THE PETITIONER THEREFORE PRAYS that on the consideration of this Petition Your Excellency may be graciously pleased to exercise Her Majesty’s mercy and refer the matter to the Full Court of the Supreme Court of South Australia in accordance with s369(a) of the Criminal Law Consolidation Act 1935 as amended (South Australia).”
31 The petitioner seeks the exercise by His Excellency the Governor of the prerogative of mercy. However, in its terms, the Petitioner only seeks that the petition and the matters contained in the petition be referred to the Court of Criminal Appeal pursuant to s369a of the Criminal Law Consolidation Act.
32 His Excellency referred the petition to the Premier and the Premier, in turn, referred the petition to the Attorney General. The Attorney General sought the advice of the Solicitor General which was provided to him on 19 January 1998.
33 On 21 January 1998, the Attorney General noted on advice given to him by the Solicitor General, Mr B M Selway QC:
“To the Premier
For transmission to His Excellency The Governor with advice to take no further action on the petition.”
34 On 23 January 1998, the Attorney General sent a copy of Mr Selway’s advice to the Premier with the following memorandum:
“TO THE PREMIER
Re: VON EINEM - PETITION OF MERCY
I refer to the petition his Excellency the Governor has received on behalf of Mr BS Von Einem seeking to have his Excellency exercise his various powers including the prerogative of mercy.
Having received advice from the Solicitor General (copy attached) I concur with his views that it is recommended that his Excellency the Governor take no further action in respect of the petition as it is not reasonably possible that a miscarriage of justice has occurred.”
35 In an affidavit sworn on 11 May 1998 the Attorney explained the procedure which he follows in relation to petitions of this kind. He said:
“The usual procedure is that where I have formed the view that His Excellency should take no action in respect of a petition for mercy, that advice is conveyed directly to His Excellency through the Premier. That procedure was adopted in this case. On the other hand where it is recommended that the Governor should take some action in respect of a petition, the matter is referred to Cabinet and His Excellency acts upon the advice of Executive Council. That did not occur in this case. Consequently, so far as I am aware, the only Defendants who had any involvement in advising His Excellency in this matter, were the Premier and myself.”
36 He then referred to other matters and concluded:
“In accordance with usual practice the matter was initially referred to the Director of Public Prosecutions for his views and then to the Solicitor General for advice. Now produced and shown to me and marked “KTG 3” is a copy of the Solicitor General’s advice with the views and comments of the Director of Public Prosecutions and one of his officers.
I gave consideration to the Solicitor General’s report and I accepted his analysis and recommendations and informed the Honourable the Premier that no further action should be taken in respect of the petition. Now produced and shown to me and marked “KTG 4” is a copy of my advice to the Premier.”
37 The Attorney later filed a further affidavit, which was sworn on 10 June 1998. In that affidavit he said:
“Further to my said Affidavit, I say that I was at all material times aware of the power and discretion given me by Section 369(a) and (b) of the Criminal Law Consolidation Act, 1935 (as amended) (“the Act”).
I gave consideration to my said power and discretion in the within matter and in so doing, considered the Solicitor General’s report dated 19 January 1998 referred to in paragraph 15 of my said Affidavit.
I agreed with and accepted the Solicitor General’s analysis and recommendations and in so doing, decided not to refer the whole case to or seek the assistance of the Judges of the Supreme Court as provided by Section 369(a) or (b) of the Act. On the basis of the Solicitor General’s report I formed the view that it was inappropriate to refer the case to the Court or to seek the assistance of the Judges in that it did not seem to me that there was a reasonable possibility that a miscarriage of justice had occurred.
I did not communicate my decision to the petitioner because the relevant petition was directed to His Excellency the Governor and did not require in the circumstances of this matter a formal reply to the petitioner. I expected that His Excellency would inform the petitioner that no action would be taken in respect of the petition.”
38 It is perfectly clear from the two affidavits, to which I have referred, that the Attorney General took the advice of the Director of Public Prosecutions and the Solicitor General. In both affidavits he says that he gave consideration to the Solicitor General’s advice.
39 The Solicitor General’s advice to which the Attorney General referred, included the following:
“Having regard to section 369 of the Criminal Law Consolidation Act and to the available common law powers, there are four possible responses to the petition:
I....... His Excellency, acting upon the advice of Executive Council, could exercise the prerogative of mercy so as to pardon Von Einem or to remit the sentence.
II.You could refer the whole case to the Full Court which could consider the matter as an appeal (section 369(a) of the Criminal Law Consolidation Act, 1935), or
III..... You could refer any point in the matter for the opinion of the Judges of the Supreme Court (s369(b) of the Criminal Law Consolidation Act, 1935), or
IV.His Excellency, acting upon advice, could advise Von Einem, through his lawyers, that it is not proposed to take any further action in respect of the petition.”
40 Paragraphs I and IV of the Solicitor General’s advice are directed to what His Excellency might do. Of course His Excellency would only act on the advice of his Ministers, in this case, the Attorney General. Paragraphs II and III is advice for the consideration of the Attorney General as to what he might do.
41 The Attorney General in both affidavits, but explicitly in the second affidavit, said that he was aware of the powers to refer the matter to the Supreme Court and gave consideration to the Solicitor General’s advice and decided not to refer the matter to this Court.
The Proceedings
42 On 7 May 1998, the plaintiff commenced these proceedings against the Attorney General, the Premier and other Ministers of the Government in this State. On 19 June 1998, the plaintiff discontinued the proceedings against all Ministers except the Attorney General and the Premier.
43 The plaintiff’s summons seeks the following relief:
“1..... An order that the decision of the defendants or one or other of them made between 22 December 1997 and 11 February 1998 to advise His Excellency the Governor to take no further action in respect of the plaintiff’s Petition for Mercy and not refer the Petition to the Full Court of the Supreme Court pursuant to Section 369 of the Criminal Law Consolidation Act 1935, be quashed;
2An order that the decision of the Attorney General not refer the plaintiff’s Petition for Mercy to the Full Court of the Supreme Court of South Australia pursuant to Section 369 of the Criminal Law Consolidation Act 1935 be quashed;
3...... A declaration that in advising His Excellency the Governor “to take no further action in respect of the Petition as it is not reasonably possible that a miscarriage of justice has occurred” the defendants or one or other of them have -
3.1failed to apply the correct legal test;
3.2failed to recognize and identify the substantial procedural defects in the trial process concerning the non disclosure by the prosecution of relevant evidence;
3.3failed to recognize and identify the flaws in the forensic evidence of the prosecution;
3.4took into account irrelevant considerations in reaching their decision;
3.5failed to take into account relevant considerations;
3.6denied the plaintiff natural justice in reaching their decision;
3.7concluded without any, or any sufficient, justification that there is no reasonable possibility that a miscarriage of justice has occurred.
4...... In the alternative to paragraph 3 above, a declaration that on the basis of the matters set out in the plaintiff’s Petition for Mercy it is at least a reasonable possibility that a miscarriage of justice has occurred.
5A declaration that the Attorney General has unfairly and wrongfully failed to exercise the discretion to refer the plaintiff’s Petition for Mercy to the Full Court of the Supreme Court of South Australia pursuant to Section 369 of the Criminal Law Consolidation Act 1935.
6...... An order that the Attorney General refer the plaintiff’s Petition for Mercy to the Full Court of this Honourable Court pursuant to Section 369 of the Criminal Law Consolidation Act 1935;
7Such further order or orders as the Court deems appropriate.”
44 It is clear from the summons that the plaintiff has difficulty articulating with any precision, exactly the relief which is sought.
45 During the hearing of the proceedings the plaintiff presented his claim in slightly different form.
46 He contended:
“(a).. that the defendant the Attorney General has breached his statutory duty in that he has failed to properly exercise his power under s369 of the Criminal Law Consolidation Act 1935 by either failing to refer the plaintiff’s Petition for Mercy to the Full Court for determination or failing to refer a point to the Judges of the Court or any three of them for their opinion; and
(b)that the Attorney General failed to properly consider and determine the plaintiff’s Petition for Mercy and, or in the alternative, failed to give proper advice and to have proper consultation with the Governor of South Australia.”
47 In the conclusion to the written submissions tendered in support of the plaintiff’s case the plaintiff said this:
“73... The plaintiff contends that the fundamental issues of law raised herein concerning the exercise or failure to exercise the prerogative of mercy, the provisions of s369 of the Criminal Law Consolidation Act 1935 and the discretion and duties of the Attorney General in relation to each are within this Honourable Court’s jurisdiction and are amenable to judicial review.”
48 During argument the plaintiff also handed up a document entitled “Grounds for Judicial Review”.
49 That document is too long to include in these reasons.
50 However, that document complained of the following matters in more or less the following order:
1)..... The formulation and application by the Attorney General of the incorrect legal test.
2)A failure by the Attorney General to accord the plaintiff natural justice.
3)..... A failure by the Attorney General to have regard to the legitimate expectations of the plaintiff.
4)The adoption by the Attorney General of a legal test of “no reasonable possibility of a miscarriage of justice” which was on any view “so unreasonable as to constitute an error requiring judicial review.”
5)..... The decision by the Attorney General was so unreasonable as to constitute an error requiring judicial review.
6) Alternatively to 5) the decision of the Attorney General was wrong.
7) The prerogative of mercy is judicially reviewable.
8)..... The statutory power vested in the Attorney General pursuant to s369 of the Criminal Law Consolidation Act, 1935 is a public power and is amenable to judicial review in this case.
51 The grounds of Appeal raise matters not raised in the summons.
52 I think the plaintiff’s confusion, if I might put it that way, stems from a misunderstanding of the form of the petition.
53 The plaintiff is, of course, entitled to petition His Excellency The Governor seeking the exercise of the prerogative of mercy.
54 The presentation of that petition to the Governor empowers the Attorney General to refer the whole case to the Full Court, or if he desires the assistance of the Judges of the Supreme Court on any point refer that point to the Judges for their opinion.
55 The power to take those steps arises because the presentation of the petition to His Excellency The Governor activates s369 of the Criminal Law Consolidation Act.
56 That section provides:
“369Nothing 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.”
57 The misunderstanding, in this case, arises from the petitioner asking His Excellency The Governor to refer the matter to the Full Court of the Supreme Court of South Australia, pursuant to s369(a) of the Criminal Law Consolidation Act. The Governor has no such power. The repository of that power is the Attorney General and that power may only be exercised by the Attorney General on the consideration of a petition for the exercise of Her Majesty’s mercy.
58 The plaintiff’s petition is therefore flawed in so far as it seeks to have His Excellency The Governor refer the petition or any part of it to this Court.
59 However, the matter rather proceeded upon the basis that the matter for judicial review was the Attorney General’s failure to refer the whole of the matter to the Full Court to be heard and determined by this Court as in the case of an appeal by the plaintiff.
60 It is in respect of that decision that judicial review is sought.
61 Although the petition for the exercise of the prerogative of mercy did not seek to have His Excellency the Governor or the Attorney General obtain the assistance of the Judges of this Court on any point arising in the case for the determination of the petition, in the plaintiff’s outline of argument the plaintiff claimed that the Attorney General had breached his statutory duty in failing so to do. That aspect of the matter was only faintly pressed.
62 The real issue in the matter, although it has not been clearly identified in the written material presented to this Court, is that the plaintiff complains that the Attorney General has wrongfully failed to exercise the discretion reposing in him to refer the whole case to the Full Court for hearing and determination by the Court as if an appeal pursuant to s369(a) of the Criminal Law Consolidation Act.
Counsel’s Submission
63 Before I proceed to examine that matter I should mention that during argument counsel for the plaintiff claimed that the Attorney General “never ever” considered s369. Mr Abbott QC said, without being in any way prompted to do so by any question from any member of the Court:
“We maintain our position, that the Attorney General never, ever considered s369. That was a submission he (sic) made before Duggan J. It relied on an affidavit being filed by the Attorney General in which he claimed he did, and our position is that we applied to cross examine the Attorney General on that affidavit, our application was refused, but we will be observing that there is no note, no document, no file note, no nothing, that ever demonstrates that the Attorney General considered s369 at all.”
64 In response to that submission an exchange occurred between Mr Abbott and members of the Court in which Mr Abbott agreed that his submission meant that the Court should make a finding, contrary to the sworn evidence of the Attorney General, and that the Court should disbelieve the Attorney General on his oath.
65 There is not a scintilla of evidence, in my opinion, to support Mr Abbott’s proposition that the Attorney General “never, ever” considered s369. Indeed there is a substantial body of evidence to the contrary. There is no evidence, upon which it could be said, that the Attorney General should be disbelieved on his oath. Not only was there no evidence to support the submission but, moreover, the submission was never part of the plaintiff’s case and was never an issue in these proceedings. As can be seen such a submission was not part of the ‘Grounds of Appeal’.
66 Subsequent to the hearing Mr Abbott wrote to Prior J’s associate. After writing that letter, Mr Abbott asked the Court to reconvene so that he could make further submissions.
67 At the resumed hearing Mr Abbott said that the point was abandoned. However, he did not withdraw, in unequivocal terms, the submission he had made in relation to the Attorney General’s veracity.
68 In my opinion, Mr Abbott should not have made the submission that he did. Whether it was made in error or deliberately the submission should have been unreservedly withdrawn when the Court sat again at Mr Abbot’s request. It was not appropriate for senior counsel to claim that the Attorney General should be disbelieved on his oath, without senior counsel having a reasonable belief that there was evidence to support that claim, and, moreover, without an intention to adduce such evidence before this Court: Clyne v New South Wales Bar Association (1960) 104 CLR 186.
The Facts Leading Up To The Presentation Of The Petition
69 Before proceeding to a consideration of the plaintiff’s grounds of appeal, I should mention how it was that the plaintiff presented this petition to His Excellency the Governor.
70 Mr Von Einem’s solicitor, Mr Norman, first took instructions from his client in 1993. At that time the solicitor came into possession of a large number of documents. Included in these documents was a memorandum from Mr Mark Griffin, who had previously acted as solicitor for the plaintiff. Mr Griffin is now at the bar and appeared as junior counsel on this application. That memorandum suggested that there were documents, including a statement and surveillance sheets, in the possession of the prosecuting authorities which had never been disclosed to the plaintiff.
71 On 6 November 1996, Mr Norman wrote to the Attorney General seeking his assistance in locating that material.
72 In December 1996, the Attorney General took control of files from the Police Department and commissioned Mrs Iris Stevens, a retired Judge of the District Court, to supervise the search of those documents. The plaintiff’s solicitor was aware of those matters.
73 On 25 February 1997, the solicitor and junior counsel met with the Attorney General and were advised by the Attorney General that documents identified by the solicitor had been located, including police running sheets, records of police surveillance and a statement of Mr Sincock.
74 During that meeting, the Attorney General told the solicitor that he had received a report from Mrs Stevens in which she had concluded that, despite the apparent non disclosure of information in the discovered documents, there had been no miscarriage of justice in the plaintiff’s trial.
75 To that point of time, the legal advisers to the plaintiff were not aware that Mrs Stevens was doing any more than supervising the search for the discovered documents.
76 The Attorney General declined to provide a copy of Mrs Steven’s report.
77 The Attorney General told the plaintiff’s solicitor and junior counsel that, as a result of the advice he had received from Mrs Stevens, he did not intend to take any action in relation to the plaintiff’s conviction for the murder of Richard Kelvin.
78 After the meeting between the Attorney General and the solicitor and junior counsel for the plaintiff, the Attorney General provided the plaintiff’s solicitor with a copy of a ministerial statement issued by the Attorney General.
79 That ministerial statement contained in it the term of reference which Mrs Stevens had been asked to advise upon and a number of her conclusions. Specifically the ministerial statement included her reasoning for her concluding that the existence of the documentation and any non disclosure of it to the defence did not make the verdict unsafe or unsatisfactory.
80 They were also aware of her intermediate conclusions leading to the final conclusions to which I have referred.
81 Those intermediate conclusions were included in the ministerial statement. They were in this form (AB 23):
“In my opinion the Surveillance Reports of September/October/ November 1982 were clearly not relevant to any issue in the trial.
The surveillance reports of July 1983 were not relevant to any live issue before the jury.
Given the strength of the Crown case, the lack of cogency and credibility of this evidence, the inherent unreliability of identification evidence from a single sighting of someone unknown previously to the witness and the unsatisfactory method of the identification procedure from a single photograph I do not consider that the defence was prevented from calling evidence which was capable of raising a substantial possibility of mistake. ... I do not consider that the failure to disclose the statement to the defence deprived the defence of the opportunity to call an apparently credible exculpatory witness.”
82 I have assumed, because it is not claimed otherwise, that no application has been made at any time for the provision of Mrs Stevens’ report.
83 Presumably the plaintiff’s advisers believed that they had sufficient information as to the contents of that report.
84 The Attorney General was requested to provide copies of the documents which had been discovered by Mrs Stevens on her search of the police files. The Attorney General said that he would consider such a request if made in writing. In due course, a request for those documents was made in writing but the request itself was not responded to.
85 A formal request was then made under the Freedom of Information Act and proceedings issued under that Act against the Attorney General seeking orders for the provision of the documents.
86 On 22 August 1997, the Attorney General provided a copy of the statement of Mr Sincock, police running sheets and surveillance activity reports relating to the plaintiff.
87 Mr Norman, in his affidavit in support of the plaintiff’s application for judicial review, does not claim at any time to have requested a copy of Mrs Steven’s report. Indeed, the letter of 26 February 1997, requesting documents from the Attorney General does not seek Mrs Stevens’ report.
88 That letter does indicate, however, that Mr Norman had some conversations with Mrs Stevens about the material which had been obtained on the search. Indeed, the letter shows that on 15 January 1997, Mr Norman met with Mrs Stevens and presented her with a copy of a second statement made by Mr Sincock.
89 That shows two things. First that the plaintiff’s solicitor had a copy of Mr Sincock’s second statement when he made a request to obtain the information which was subsequently provided. Secondly, he must have believed that Mrs Stevens was, at least, considering the material which she had found in her search of the police files because otherwise there would be no point in supplying her with a copy of Mr Sincock’s second statement.
90 After receiving the earlier statement of Mr Sincock and the police running sheets and surveillance records, the plaintiff’s solicitor obtained a number of reports including a report from a Mr Jack Fish dated 4 October 1997, a report from a Dr Wallman dated 9 October 1997 and a report from a Professor Michael Pailthorpe dated 7 November 1997.
91 The plaintiff’s solicitor was then instructed to prepare and serve a petition for mercy and on 22 December 1997 a petition was delivered personally to Government House for the attention of His Excellency, the Governor. The petition was accompanied by the documents provided to the solicitor for the plaintiff by the Attorney General on 22 August 1997 together with the expert reports from Mr Fish, Dr Wallman, Professor Pailthorpe and a report of Professor Plueckhan.
92 At the time that the petition was presented to His Excellency, the Governor, the plaintiff’s legal advisers were aware that Mrs Iris Stevens had prepared a report in connection with the documentation which was supplied to the plaintiff’s solicitor on 22 August 1997.
The Prerogative Of Mercy
93 In the circumstances of this case the question of whether the prerogative of mercy is subject to judicial review does not need to be determined. It is not suggested by the plaintiff that His Excellency The Governor should have exercised the prerogative of mercy in favour of this plaintiff. As I have said, all that is suggested is that on the presentation of a petition to His Excellency The Governor the Attorney General has failed to exercise his statutory duty.
94 In those circumstances this Court does not need to decide whether the High Court’s decision in Horwitz v Connor (1908) 6 CLR 38 may still be considered to be binding on this Court. That was an application to the High Court for special leave to appeal from a decision of the Supreme Court of Victoria. The Court was constituted by all of the Justices of the High Court.
95 The Court’s reasons were:
“The power given to the Governor in Council by sec 540 of the Crimes Act 1890 is a discretionary power to make regulations, and further, ‘to mitigate or remit the term of punishment accordingly,’ that is, in accordance with the regulations. The Governor in Council has power to remit the term of imprisonment of the applicant. He has not done so. The most that might be asked for here would be a mandamus to the Governor in Council to consider the matter. But a mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. The application will be refused.”
96 That decision was given at a time when the courts were reluctant to extend any notion of judicial review in the nature of certiorari or mandamus to the prerogative power; R v Governor of the State of South Australia (1907) 4 CLR 1497 at 1512. It was thought at that time that the prerogative power itself was not subject to review. The source of the power being the prerogative meant that it was not subject to review: Barton v The Queen (1980) 147 CLR 75 per Gibbs ACJ and Mason J at 90; The Queen v Toohey ex parte Northern Land Council (1981) 151 CLR 170 per Mason J at 219.
97 The modern approach does not deny that a prerogative power can be judicially examined because it is a prerogative power, but rather considers the nature or subject matter of the power which is sought to be reviewed.
98 It is the nature or the subject matter of the power which determines whether it is subject to review rather than whether the power owes its source to prerogative or statute. In CCSU v Minister For Civil Service (1985) AC 374 Lord Scarman said at 407:
“Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required as of a purely administrative act, so also has the modern law ... extended the range of judicial review in respect of the exercise of prerogative power. Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.”
99 See also Mason J in The Queen v Toohey ex parte Northern Land Council (supra) at 220.
100 Whilst some prerogative powers have been held to be subject to judicial review, it may be that the prerogative of mercy is one of those prerogative powers that is not amenable to review. It may be that the very nature of the power or the subject matter of the power means that it cannot be susceptible to judicial review.
101 In De Freitas v Benny (1976) AC 239 the appellant was convicted of murder and sentenced to death by the Supreme Court of Trinidad and Tobago. His appeal against conviction was dismissed and a petition for special leave to appeal to the Privy Council was also dismissed. He then brought proceedings in the High Court of Trinidad and Tobago for a declaration that the carrying out of the death sentence would contravene his human rights recognised under the Constitution of Trinidad and Tobago. That action was unsuccessful and so also was an appeal. He appealed from the Court of Appeal to the Privy Council.
102 It was contended before the Board of the Privy Council that before advice was to be tendered to the Governor-General as to the exercise of the prerogative of mercy, which was done through an Advisory Committee, the appellant would be entitled to be shown the material which the Minister was to tender on the prerogative of mercy and to be heard by the committee in relation to that advice.
103 Lord Diplock speaking for the Board said at 247:
“Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function. While capital punishment was still a lawful penalty for murder in England it was the practice of the Home Secretary in every capital case to call for a report of the case from the trial judge and for such other information from such other sources as he thought might help him to make up his mind as to the advice that he would tender to the sovereign in the particular case. But it never was the practice for the judge’s report or any other information obtained by the Home Secretary to be disclosed to the condemned person or his legal representatives.
Section 70(1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised by the Governor-General but ‘in Her Majesty’s name and on Her Majesty’s behalf.’ By section 70(2) the Governor-General is required to exercise this prerogative on the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister. This provision does no more than spell out a similar relationship between the designated Minister and the Governor-General acting on behalf of Her Majesty to that which exists between the Home Secretary and Her Majesty in England under an unwritten convention of the British Constitution. It serves to emphasise the personal nature of the discretion exercised by the designated Minister in tendering his advice. The only novel feature is the provision in section 72(1) and (2) that the Minister before tendering his advice must, in a case where an offender has been sentenced to death, and may, in other cases, consult with the Advisory Committee established under section 71, of which the Minister himself is chairman; but section 72(3) expressly provides that he is not obliged in any case to act in accordance with their advice. In capital cases the Advisory Committee too must see the judge’s report and any other information that the Minister has required to be obtained in connection with the case, but it still remains a purely consultative body without any decision-making power.
In their Lordships’ view these provisions are not capable of converting the functions of the Minister, in relation to the advice he tenders to the Governor-General, from functions which in their nature are purely discretionary into functions that are in any sense quasi-judicial. This being so the appellant has no legal right to have disclosed to him any material furnished to the Minister and the Advisory Committee when they are exercising their respective functions under sections 70 to 72 of the Constitution.”
104 In CCSV v Minister for Civil Service Lord Roskill said at 418:
“But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.”
105 De Freitas v Benny has recently been affirmed and followed in Reckley v Minister of Public Safety (No. 2) (1996) 1 AC 527. Lord Goff of Chieveley said at 540/541:
“Mr Tattersall invoked a number of authorities in support of his argument; but in their Lordships’ opinion, they did not assist him. First, he cited the leading case of Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374. That case recognised that the exercise of a prerogative power was not ipso facto immune from judicial review; but it certainly did not go so far as to suggest that every exercise of such a power was amenable to that jurisdiction. This was made plain in a number of passages from their Lordships’ speeches in that case. To select just one example, Lord Scarman said, at p.407:
‘if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power.’
See also Lord Diplock, at pp. 408-409, and Lord Roskill, at p.418A-C. These passages are, in their Lordships’ opinion, inconsistent with the submission advanced on behalf of the petitioner in the present case, in that the exercise of the prerogative of mercy in a death sentence case under the Bahamian Constitution is, for the reasons already given, not justiciable.”
106 In R v Toohey: ex parte Northern Land Council. Gibbs CJ referred to Horwitz v Connor (supra) apparently with approval. Aickin J said at 261:
“In relation to Ministers and statutory authorities it is now clear that the Court will investigate the purposes actuating them in the exercise of a statutory power. The position with respect to prerogative powers is not the same as that with respect to statutory powers, it being clear that at least in the case of some prerogative powers, reasons, motives and intentions of the Crown’s representative are not reviewable in any court. The prerogative of mercy is a clear enough example (cp. Horwitz v Connor) and it is not relevant to the present case to endeavour to examine each of the remaining ascertained prerogative powers.”
107 It is probable, therefore, that, as presently advised, the prerogative of mercy is not subject to review, not because its source is the prerogative but because of the subject matter of the power itself. The weight of authority seems to suggest so: Burt v Governor General (1992) 3 NZLR 673; cf. Reg v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349. However, as I say, there being no complaint about His Excellency’s refusal to exercise the prerogative of mercy, this Court does not need to finally decide that matter.
The Attorney General’s Powers
108 It is the statutory power which arises by reason of the petition for the exercise of the prerogative power which must be addressed and a decision reached as to whether that statutory power is subject to judicial review. If the Court concluded that the statutory power was not subject to judicial review it might be difficult to reach any conclusion other than that the prerogative power of mercy itself is also not subject to judicial review. It may be thought that if the statutory power, which is ancillary to the prerogative power, is not subject to review then the prerogative power itself could also be not subject to review.
109 On the other hand, if the Court concluded that the statutory power, which is activated by the presentation of the petition for the prerogative power, is subject to judicial review it does not necessarily follow that the prerogative power, which is, by source and by nature, quite different, is also subject to judicial review.
110 There can be no suggestion, it seems to me, that the source of the Attorney General’s power would preclude judicial review because a statutory power may be subject to judicial review: R v Toohey; ex parte Northern Land Council per Mason J at 224 and Aickin J at 261; Blyth District Hospital v Health Commission (1988) 49 SASR 501 at 509. But the converse is not necessarily so. It cannot be said that because it is a statutory power that it must be amenable to review. Not all statutory powers are subject to review: Barton v R at 94. If the powers given the Attorney General under s369 are not subject to judicial review it is not because the power arises by statute but because of the nature or subject matter of the power.
111 When the petition for mercy is presented to the Governor the Governor refers that petition to his Ministers for their advice. Clearly enough a petition for the exercise of mercy falls within the jurisdiction of the Attorney General and it is for the Attorney General to advise in relation to the petition. So much is implicitly recognised by s369.
112 As the Solicitor General’s advice shows on a consideration of a petition for mercy the Attorney General has four options. He may:
113 a) Advise His Excellency The Governor to exercise the prerogative of mercy so as to pardon the plaintiff or to remit the sentence imposed on the plaintiff.
114 b) Advise His Excellency The Governor to refuse to exercise the prerogative of mercy either in respect of a pardon or in respect of a remission of sentence.
115 c) Refer the whole case to the Full Court for hearing by the Full Court as if it were an appeal by the petitioner.
116 d) If he desires the assistance of the Judges of the Supreme Court on any point arising in the case with a view to determination of the petition refer that point to those Judges for their opinion.
117 The section is drafted in the very widest of terms to allow the Attorney General the greatest latitude in a consideration of the petition.
118 Presumably the Attorney General would not do either of the matters in s369 unless there was a challenge to the verdict giving rise to the conviction or the sentence which has been imposed. If the petitioner was simply seeking an act of mercy on the part of His Excellency the Governor, without any complaint about the conviction or the sentence imposed upon the conviction, then the Attorney General would not refer the matter to the Full Court because no question for judicial consideration would arise.
119 It is only in circumstances where the petition raises a question as to whether a conviction should have been entered, or whether a sentence of the kind or of the duration should have been imposed, that the matter would be referred to the Court for the Court’s consideration under either limb of s369.
120 Section 369 does not create legal rights. A petition for mercy directed to the Governor does not give rise to any legal rights in favour of the petitioner. The petition assumes all legal rights have been exhausted. A petitioner seeks mercy and no more than that. The presentation of the petition does not allow a petitioner to claim that the matters in the petition should be addressed by the Court under either limb of s369. If they are to be addressed it will only be because the Attorney General in his unconfined and uncontrolled discretion believes it appropriate.
121 Section 369 does not require the Attorney General to exercise his discretion. The statutory power given to the Attorney General is entirely discretionary. It is in the nature of a personal power. The power is exercisable, as the section says, if the Attorney General “thinks fit”. The discretion is granted without qualification. The discretion is entirely unconfined. The discretion is to be exercised in the circumstances where the Attorney General has to advise the Governor in respect of the petition for mercy. That advice involves an even wider discretion. The Attorney General in this State has the same responsibilities in advising the Governor as the Home Secretary in England has to Her Majesty. In exercising those responsibilities he has the same discretions which are of a similar purpose, nature and character. As Lord Diplock said in De Freitas v Benny at 247 that wider advice is ‘the exemplar of a purely discretionary act’. The nature of the discretion is personal [248].
122 The powers which are given to the Attorney General under s369 are similar in nature and character to other powers the Attorney General possesses.
123 In Barton v R the High Court considered whether the power of an Attorney General to present an ex officio information to the court was subject to review. In that case the power to prosecute offences by an information was conferred upon the Attorney General by s5 of the Australian Courts Act. It was argued by the appellants that as the power was conferred upon the Attorney General by statute that power could be distinguished between the prerogative or common law power of the Attorney General in England to present an ex officio information.
124 Gibbs ACJ and Mason J traced the history of the prerogative or common law power of an Attorney General to present an information to the court and in doing so they discussed a number of decisions in England and in New South Wales.
125 They said at 94:
“The appellants contest this view of s5. They say that because the power is statutory, its exercise is necessarily examinable by the courts. This they put as a general principle applying to all statutory powers.
…
It is not correct to say that the exercise of every power given by statute is examinable by the courts in the manner suggested by the appellants. It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the Court must concede to the repository a discretion unlimited by anything but the scope and object of the statute.
...
The provision made by s5 is very different from an ordinary administrative discretion conferred by statute. The section is a self contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted. All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information and the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney-General at large in deciding what course he should take, it makes his decision immune from judicial review.
All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown. The function which the Attorney General performs in commencing prosecutions is one that otherwise was performed by the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity.”
126 Their Honours went on to say:
“It would be surprising if Parliament intended to make the Attorney’s information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v Humphrys (1977) AC 1 to which we shall refer shortly - though it may be that in exercising its powers to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of the judicial review of the Attorney General’s decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with.”
127 In further elucidation of the amenability of powers exercised by the Attorney General, Mason J said in The Queen v Toohey Northern Land Council at 218:
“Even so, as de Smith points out in his Judicial Review of Administrative Action, 4th ed. (1980), p. 286, the courts in earlier times took it upon themselves to decide whether a particular prerogative power existed, what was its extent, whether it had been exercised in appropriate form and how far, if at all, it had been superseded by statute (see the Case of Monopolies; Prohibitions del Roy; Proclamations.)
There was no doubt that an exercise of prerogative power was considered to be immune from attack for mala fides. Likewise, although the grounds on which exercise of a discretionary power might be set aside had not been fully elaborated and refined at that time, there is no doubt that an attack on the exercise of a prerogative power for improper purpose and inadequacy of grounds was regarded as inconsistent with accepted doctrine. So much at least emerges from the authorities which Gibbs J. and I discussed in Barton v The Queen. According to these authorities the prerogative discretions of the Attorney-General to enter a nolle prosequi, to grant or refuse a fiat in relator actions and to file an ex officio information are not subject to curial review (see Reg v Prosser; Reg. V Allen; Reg. V Labouchere; Reg v Comptroller-General of Patents, Designs and Trade marks; Gouriet v Union of Post Office Workers. The comments of Dixon J in Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee and Australian Communist Party v The Commonwealth reflect this view.”
128 [Citations omitted]
129 The authorities make it clear that the Attorney General’s power to lay an information or an ex officio information, to enter a nolle prosequi and to grant or refuse a fiat in relator actions are not subject to review. It would follow, in my opinion, from those authorities that a decision by an Attorney General to seek leave to appeal against sentence imposed would also not be subject to judicial review.
130 That power would by analogy not be amenable to judicial review.
131 In those circumstances it is difficult to see how the power which is reposed in the Attorney General by s369 stands in any different position to those other powers which are not subject to review. It is difficult to see how the power to refer the whole case or a point to the Full Court is any different from a decision made by an Attorney General to seek leave to appeal against sentence.
132 I suppose that it might be said that the power to lay an information or an ex officio information brings the parties before the court and the matters upon the information become justiciable even if the exercise of the power does not. That, however, does not explain why it is that the courts will not review a decision to enter a nolle prosequi or grant or refuse a fiat in relation to a relator action.
133 As Mason J has pointed out in the Queen v Toohey Ex parte Northern Land Council at 219 no particular ground has been assigned for deciding that the exercise of those powers by the Attorney General are unexaminable. However, it cannot be doubted, I think, at least at the intermediate appeal level, that decisions by the responsible law officer to lay informations or to proceed ex officio or to enter a nolle prosequi, whether made by the Attorney General or the Director of Public Prosecutions, are not susceptible to judicial review. So much has been made quite clear in Maxwell v The Queen (1996) 184 CLR 501 where Gaudron and Gummow JJ said at 534:
“The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as “the prosecutorial discretion”. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s394A of the Act.
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decision, decision as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”
134 In this State it is now the Director of Public Prosecutions who has the power to lay charges and to prosecute offences against the law of the State, to lay informations ex officio, to enter a nolle prosequi and to exercise appellate rights arising from criminal proceedings or civil proceedings for a contempt of court. It is also the Director who has the power to seek leave to appeal from a sentence and who has the right of appeal or who might seek leave to appeal against a decision made on an issue antecedent to trial. The Director obtained those powers on 6 July 1992 when the Director of Public Prosecutions Act 1991 came into force.
135 That it is the Director of Public Prosecutions who now has the powers which were previously enjoyed by the Attorney-General is not, in my opinion, to the point. I do not think that to be a point of distinction and nor did Gaudron and Gummow JJ in Maxwell v R.
136 In my opinion, there is no distinction in the nature or character of the power which was previously enjoyed by the Attorney General and now enjoyed by the Director of Public Prosecutions in laying informations ex officio or otherwise, entering a nolle prosequi or granting or refusing a fiat in relation to a relator action and the powers which are given the Attorney General in s369. There being no distinction in nature of character, in my opinion, it must follow that the discretion vested in the Attorney General in s369 is not subject to judicial review.
137 In De Freitas v Benny s70 of the Constitution of Trinidad and Tobago preserved the prerogative of mercy. The Privy Council decided that the prerogative of mercy in Trinidad and Tobago was of the same legal nature as the royal prerogative of mercy in England. In the case of Trinidad and Tobago it is exercised by the Governor General, but in Her Majesty’s name and on Her Majesty’s behalf. The Governor General is required to exercise the prerogative on the advice of a Minister designated by the Governor General but acting in accordance with the advice of the Prime Minister.
138 The Minister, before advising the Governor General, must, in a case where a person has been sentenced to death, consult with an Advisory Committee established under the constitution. The Minister is the chairman of that Advisory Committee and the Constitution expressly provides that the Minister is not obliged, in any case, to act in accordance with their advice. In capital cases, the Advisory Committee must obtain a report from the judge and must obtain other information. The Minister may consult with the Advisory Committee in cases, other than in capital cases, but that is a matter of discretion for the Minister.
139 It was argued before the Privy Council that the appellant would be entitled to be shown any material which the designated Minister placed before the Advisory Committee and would be entitled to be represented and heard at a hearing before that committee.
140 That argument was rejected by the Privy Council. Lord Diplock said at 248:
“In their Lordship’s view these provisions [referring to the provisions of the Constitution to which I have referred] are not capable of converting the functions of the Minister, in relation to the advice he tenders to the Governor General, from functions which, in their nature are purely discretionary into functions that are in any sense quasi judicial. This being so the appellant has no legal right to have disclosed to him any material furnished to the Minister and the Advisory Committee when they are exercising their respective functions under sections 70 to 72 of the Constitution.”
141 In Reckly v Minister of Public Safety, the appeal was from a decision of the Supreme Court in the Bahamas.
142 The Bahamian Constitution preserved to the Governor General the power to pardon or grant a respite from the execution of any punishment or substitute a less severe form of punishment or remit the whole or any part of the sentence passed for any offence against the law of the Bahamas.
143 Like the Constitution of Trinidad and Tobago, the Bahamian Constitution provided for an Advisory Committee. The functions of that Advisory Committee were: (536)
“(1).. Where an offender has been sentenced to death by any court for an offence against the law of the Bahamas, the minister shall cause a written report of the case from the trial Justice of the Supreme Court, together with such other information derived from the record of the case or elsewhere as the minister may require, to be taken into consideration at a meeting of the advisory committee.
(2)The minister may consult with the advisory committee before tendering any advice to the Governor General under paragraph (2) of article 90 of this Constitution in any case not falling within paragraph (1) of this article.
(3)The minister shall not be obliged in any case to act in accordance with the advice of the advisory committee.
(4)The advisory committee may regulate its own procedure.
(5)In this article “the minister” means a minister referred to in paragraph (2) of article 90 of this constitution.”
144 Like the Constitution of Trinidad and Tobago, the Bahamaian Constitution provided that in all capital offences the Minister was obliged to consult with the Advisory Committee, but in all other offences the Minister had a discretion so to consult. In neither case, however, was the minister obliged to act in accordance with the advice of the committee.
145 At 539 Lord Goff of Chieveley concluded that the legislation provided:
“… a strong indication of an intention to preserve the status of the minister’s discretion as purely personal discretion, while ensuring that he receives the benefit of advice from a reputable and impartial source.”
146 He went on to say:
“Indeed it may be inferred that the reason why provision was made in the Constitution for an advisory committee was to provide a constitutional safeguard in circumstances where the minister’s discretionary power was of such a nature that it was not subject to judicial review.”
147 It must be accepted that their Lordships made it clear that they were restricting their remarks in relation to the Advisory Committee to capital cases and did not, in their remarks, address the question with reference to the exercise of the powers of the Governor General in other cases.
148 The legislation in both Trinidad and Tobago and Bahamas is quite different to this legislation.
149 However, it has some similarities in that the Minister who has the responsibility of advising Her Majesty’s representative has an uncontrolled discretion as to what advice that Minister may tender. In the West Indian countries, in capital cases, the Minister must consult with an Advisory Committee of prominent persons but, even so, that Minister need not accept the advice given by the Advisory Committee and may advise the Governor General of those countries that the sentence of execution should take place notwithstanding contrary advice from the Advisory Committee.
198 The position is no different, in my opinion, from that adverted to by Lord Diplock in De Freitas v Benny in the passage to which I have referred. His Lordship made it clear in that passage that it has never been the practice in England for the judge’s report, which was relied upon by the Home Secretary for the purpose of advising Her Majesty, to be made available, in the case to which he referred, to ‘the condemned person’ or his legal representatives.
199 The advice obtained by the Attorney General was not, in my opinion, required to be given to the plaintiff or the plaintiff’s legal practitioner, nor was the Attorney General obliged to hear the plaintiff or his legal representatives in relation to the release of that advice or the advice itself or on any other matter.
200 It was not a denial of natural justice, in my opinion, for the Attorney General to have acted in the way that he did.
201 If the Attorney General was under a duty to accord the plaintiff natural justice and procedural fairness, which I will accept for the purpose of that which follows, in my opinion, the content of that natural justice must be governed by construction of the statute which gave rise to the power to make the decision.
202 In Kioa v West (1985) 159 CLR 550 Mason J said at 584:
“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.”
203 As I have already pointed out, this statute gives an unconfined and uncontrolled discretion to the Attorney General to determine whether matters should be referred to this Court. The section does not prevent the Attorney General, in my opinion, from taking advice from persons apart from the judges of the court.
204 The purpose of the section is, as I have stated, to act as a safety valve in relation to potential miscarriages of justice. In that respect the Attorney General is quite unconfined as to what he might do and how he might do it. To require him to provide the plaintiff with advice which he has obtained in connection with his powers and how they might be exercised would be to unduly fetter, by procedural means, the discretion which he otherwise enjoys.
Legitimate Expectations
205 It was also said that the Attorney General had erred in failing to respond to the legitimate expectations of the plaintiff. It was not clearly articulated what those legitimate expectations were, but I think they were no more than the expectation that the Attorney General would accord the plaintiff procedural fairness.
206 I have already answered that and for the same reasons, in my opinion, any complaint in relation to legitimate expectations fails.
207 If any legitimate expectations are raised, which give rise to judicial review, in my opinion, in this matter the plaintiff could only have legitimately expected that the Attorney General would have considered the four matter to which I have referred in the Solicitor General’s advice. Those four matters encompass all the alternatives available to the Attorney General in respect of the appropriate advice he had to give the Governor and any decision the Attorney General had to make. In considering those four matters he would be discharging his common law duty, if it ever arose, to act fairly: South Australia v O’Shea (1987) 163 CLR 378 per Mason J at 386.
208 There is no doubt that the Attorney General considered those matters and in that respect he discharged whatever common law duty he had. The plaintiff, in my opinion, cannot claim to be entitled to any relief in respect of any failure by the Attorney General to have regard to the plaintiff’s legitimate expectations.
The Decision Itself - “So Unreasonable”?
209 Lastly, it was argued, by the plaintiff, that judicial review was available to the extent that the decision made by the Attorney General was susceptible to review. In my opinion, that cannot be right. For the reasons I have already said s369 in its term is very wide. There are no parameters within the section itself to determine how the discretion ought to be exercised.
210 The decision, itself, cannot be subject to review.
211 In Attorney General (New South Wales) v Quin (1990) 170 CLR 1 Brennan J said at p35/36:
Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive, although Mr Beatson has pointed out that -
‘Ultra vires is ... both a powerful constitutional justification for judicial control and a useful organizing principle for the creation of a coherent subject from what has sometimes appeared to be a ‘wilderness of single instances’.’
(“The Scope of Judicial Review for Error of Law”, Oxford Journal of Legal Studies, vol 4 (1984) 22). The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v The Commonwealth and Hayden, Gibbs J said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison:
‘It is, emphatically, the province and duty of the judicial department to say what the law is.’
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.”
212 [Citations omitted]
213 In my opinion, it is the result that if the Attorney General exercises the powers given to him under s369 within the purpose and character of the powers and within its terms the decision at which he arrives cannot be subject to judicial review.
214 To decide otherwise would be simply to allow a plaintiff a right, in every case, in which the plaintiff presented a petition for the exercise of the prerogative of mercy to the Governor, access to the court. That access would be in the nature of an appeal which would arise because the Attorney General would either refer the whole case to the court under s369(a) or, if he did not, the plaintiff, if the plaintiff’s argument is right, would be entitled to seek judicial review of the decision made not to refer the case to the Court. Either way the matter would come before the Court.
215 Judicial review is not about the review of a decision made within power except in one set of circumstances and that is in the circumstances adverted to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
216 Brennan J explained Wednesbury in Attorney General (NSW) v Quin at 36:
217 “Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power; Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
218 It was put that this decision could be reviewed because no reasonable person in the position of the Attorney General could have taken the impugned decision or action by refusing to refer the whole case to this Court. It was also put that the decision itself was simply wrong and that was a matter for judicial review.
219 The second submission cannot be right and although I do not believe that the decision is subject to judicial review even in the Wednesbury sense, I shall discuss the evidence which was referred to in the petition and which is said to have formed the basis for a necessary referral to this Court.
The Facts
220 The victim of this crime was a young man Richard Kelvin who lived with his parents at North Adelaide. At about 6 pm on 5 June 1983 he and a friend left his parent’s house to walk to a bus stop where his friend intended to catch a bus. Richard Kelvin was expected to return home immediately. He had arranged to telephone his girlfriend at 6.20 pm. His dinner was waiting for him.
221 His friend caught the bus and Richard Kelvin then had a short conversation with a young male acquaintance near the bus stop. He left that young man travelling by foot in the direction of his home.
222 He was last seen sometime shortly after six o’ clock running or jogging down a side street in the general direction of his home. He never returned home. On the Crown case he was never seen alive again, except by whoever was responsible for his death.
223 His body was discovered on 24 July 1983 in scrub country adjacent to a dirt air strip which is near the Mount Crawford Forest somewhere between Kersbrook and One Tree Hill.
224 A post mortem examination was carried out which disclosed a number of injuries. In particular, there was injury to the anal area which had been caused by a hard blunt object.
225 Because of the state of decomposition of the body the expert pathologist was not able to say whether that injury was caused before or after the death or whether it was the cause of death.
226 The evidence was that if that injury had been caused whilst he was alive it would have caused copious bleeding and if it was caused after his death there would have been oozing of blood or seepage of fluids. In fact, there were no signs of blood on the body which indicated that the body had been washed after the injury was inflicted.
227 There were other injuries. There was a bruise on the left side of the deceased’s back which, it was said, must have been inflicted about two or three weeks before the deceased’s death. There was another deep seated bruise on the right buttock which on the expert evidence must have been caused several days before his death. He also had head injuries including a subdural haematoma which on the expert evidence called at trial was at least life threatening and might have caused his death but on the balance of probabilities did not do so.
228 The Crown case was, bearing in mind that Richard Kelvin was last seen on 5 June 1983 and his body was discovered on 24 July, that he must have been subject to physical mistreatment over the period between his abduction and the finding of his body. The Crown case was that the mistreatment was sufficient to cause serious physical injuries but not to cause death.
229 It was the Crown case that once Richard Kelvin had been abducted and subjected to the physical mistreatment which I have described, the person or persons responsible had no choice, at least as far as they saw it, but to kill him.
230 The Crown was not able to nominate a cause of death but suggested that death may have been caused through asphyxiation. Specifically it was not part of the Crown case that the anal injury was the cause of death.
231 The Crown called expert evidence in relation to the condition of the body and the state of its decomposition. It is not necessary to detail that evidence but the evidence was to the effect that the body had been left at that site on 11 July or on the night of 10-11 July 1983. There was other evidence to suggest that the body could not have been there before 10 July 1983.
232 The Crown case was that death occurred not more than two days before the body was dumped.
233 The appellant was first interviewed by the police on 28 July 1983 when he denied that he had played any part in the abduction or the killing of Richard Kelvin. He further denied that he knew who had done so. He told the police, on that occasion, that on 5 June 1983 he was home and ill. His initial reaction therefore was a complete denial of any knowledge of Richard Kelvin. He was arrested and charged with murder in November 1983.
234 The prosecuting authorities took fibres from Richard Kelvin’s clothes and from the plaintiff’s bedspread, carpets in his home and cardigan. Evidence was called to show that those fibres matched. Hair was also taken from Richard Kelvin’s clothes which matched hairs taken from the plaintiff. There were other fibres present on Richard Kelvin’s clothes but they could not be matched to any other source.
235 The forensic evidence consisting of the fibres and the hairs indicated there had been contact between the deceased and the plaintiff. The evidence also indicated that the deceased had been at the home of the plaintiff. That evidence indicated, if not established, that the plaintiff’s denial that he knew Richard Kelvin was false.
236 At the committal hearing plaintiff’s counsel told the Court that his instructions were that his client had met Richard Kelvin on the night of Sunday 5 June 1983 and Richard Kelvin willingly accompanied the plaintiff in his car.
237 As a result of the plaintiff’s counsel statement to the Court the plaintiff was reinterviewed by police. He told police that the deceased had voluntarily got into his car at North Adelaide and accompanied him to his home which was in the North Eastern suburbs and remained with him for two and a half hours. He said that he had then driven Richard Kelvin to North Terrace where he left him after giving him a twenty dollar note.
238 That was the account which the plaintiff gave in his unsworn statement during his trial. On that account, of course, he would have arrived at North Terrace with Richard Kelvin sometime after 8.30 pm.
239 Evidence was led, at the trial, from Mr and Mrs Kelvin, the deceased’s parents, that their son had no homosexual inclination and that he had expressed attitudes adverse to homosexuality. That evidence was led to rebut the inference arising from the plaintiff’s account that because of the deceased’s homosexual inclinations he had gone willingly with the plaintiff to his home. The plaintiff rather suggested that the deceased had mentioned to him that he engaged in homosexual acts for money.
240 The Crown case was a strong one. The Crown case did not claim initially that the plaintiff had abducted the deceased but after the plaintiff changed his account the Crown case was that the plaintiff had abducted the deceased, taken him to his home and with other persons had kept him captive. It was accepted that he was not kept at the plaintiff’s home for the whole time.
241 Jacobs J, a member of Full Court on the plaintiff’s appeal against conviction, said of the Crown case (38 SASR 207 at 223):
“There can be no doubt in this case of the strength of the circumstantial evidence upon which the Crown relied to implicate the accused in the undoubted murder of the youth. It was, upon the whole of the evidence, in the highest degree unlikely that the victim would have voluntarily accompanied the accused in his car; to suggest otherwise exceeds the limits of reasonable possibility; there was undisputed forensic evidence linking the deceased with the accused and his environment a short time before the deceased’s death, against which the accused set the highly unlikely “static clothes” theory; and the victim’s body was found in a remote and secluded area which happened - by sheer coincidence? - to be close to a place the accused was known to visit. By way of defence, the accused at first falsely denied any association with the deceased youth; but when the case against him unfolded in the lower court he recanted, and admitted to a brief encounter with the youth on the night of his disappearance; he adopted this account in an unsworn statement to the jury, but in the light of the whole of the evidence, certain important features of it - quite apart from the claim that the youth voluntarily accompanied him - were so unlikely as again to exceed the limits of reasonable possibility.”
The Further Evidence
242 A formal statement was taken from Edward Sincock shortly after Richard Kelvin’s disappearance in June 1983. Edward Sincock was described by the Director of Public Prosecutions as “a convicted paedophile” and “notoriously unreliable”. In his statement Mr Sincock said that he observed a boy, who may have been the victim, in Rundle Mall around 7 pm on the evening of 5 June. He apparently made an earlier informal statement when he put the time between 6.30 and 7.30 pm. He described the boy as about seventeen years of age, thin with fair, short cut hair. He said the boy was accompanied by a man who looked about twenty-five to thirty years of age and he had hair of a lighter colour than the accompanying boy. The boy was wearing a T-Shirt with a ‘Channel 9’ logo on it.
243 Clearly enough, that evidence would have been admissible. It should have been disclosed by the prosecuting authorities to the plaintiff. The failure to disclose the information has not been satisfactorily explained. However, accepting as I do that the evidence ought to have been disclosed, the question remains whether that evidence might have contributed to a miscarriage of justice.
244 The answer to that question must be in the negative. Mr Sincock’s evidence was, in a sense, irrelevant. On both the Crown case and the defence case Mr Sincock could not have seen the deceased in the city at that time nor could he have seen the deceased in the company of someone other than the plaintiff. The plaintiff’s whole case was that at the time that Mr Sincock made his sighting, and for about an hour and a half thereafter, the deceased was in his company in the North Eastern suburbs, not in the City of Adelaide.
245 If Mr Sincock’s observations were accurate then he must have observed some other young man in the company of a twenty-five to thirty year old.
246 It is difficult to see how the plaintiff could have used Mr Sincock’s evidence in his defence. He could not have said that Mr Sincock observed the deceased because to do so would have been to deny his own account to the police and his unsworn account.
247 Perhaps it would have allowed him to change his account but in the circumstances one would have to assume that the other account was untrue or that he was changing his account to suit Mr Sincock’s evidence and the later account would be untrue.
248 The evidence is simply not consistent with the plaintiff’s account of the events of 5 June 1983 and in those circumstances would not have assisted him in his defence and therefore, by its absence, could not have contributed to a miscarriage of justice.
249 In 1991 Mr Sincock apparently gave a further statement to the solicitor acting for the plaintiff, Mr Griffin. That statement was taken at the Yatala Labour Prison. In that statement he said that he was in Rundle Street near the Richmond Hotel between 8:30 and 8:45 pm when he saw a young man who was talking to someone else. He then described the young man in the same terms as the young man whom he had described in his first statement some eight years earlier. On both occasions he said the young man was wearing a T-shirt with a ‘Channel 9’ logo on it.
250 In his second statement he described the circumstances in which he gave his statement to the police. He also said that he did not know the plaintiff prior to 1983 but has met him since in the Adelaide gaol. He was able to say that the boy, whom he saw in the Rundle Mall, was not talking to the plaintiff.
251 In that second statement he does not explain the serious discrepancy in his statement about time.
252 Mr Norman said in an affidavit sworn on 9 June 1998 that he had spoken to Mr Sincock on 24 September 1997 about these matters and that Mr Sincock recalled the events consistently with his second statement.
253 I cannot understand, if it be the case, why neither solicitor asked Mr Sincock why his recollection of time was different in 1991 and 1997 than it was within three days of the events. His first statement, in which he said the time was 7.00 pm when he made his sighting, was given within three days of the events. The question had to be asked. If it was, this Court has not been told the answer. If the question was not asked the Court will never know because Mr Sincock died in May 1998.
254 In my opinion, his evidence was not such that it could be said that it was arguable that a miscarriage of justice occurred. No doubt eight years after the event Mr Sincock, who by then knew Mr Von Einem, would have been aware of the importance of time.
255 There is a further difficulty about Mr Sincock’s evidence and that is that it does not account for the forensic evidence, which was led at trial, which established that there was contact between the plaintiff and the deceased subsequent to 5 June 1983.
256 Police running sheets were produced. They indicated that police officers spoke to a man named Peter Townsley, who told police that at 9:30 pm on 5 June 1983 he saw two youths in the company of an older man. He said that one of the youths appeared frightened.
257 The running sheet is in the following form:
258 “Peter Townsley (address given) claimed returned home from (address given) and was waiting for girlfriend and mother to come from (address given) was waiting in Hindley Street at about 9:30 pm Sun last saw 2 youths one tall one short with a man about 50 yrs he had his hand on the taller youth and the shorter one was nerby (sic) both seemed scared. This was outside the games areain (sic) Hindley Street.”
259 The account is, of course, very vague, but it is evidence which should have been disclosed by the prosecuting authorities to the plaintiff and his advisers before his trial.
260 The plaintiff could have relied upon that evidence for the purpose of establishing that there was a reasonable possibility that one of those youths was the deceased. One difficulty, of course, with that suggestion is the absence of the other youth. There is no suggestion that this particular crime involved any other abduction or that any other youth was involved in the commission of the crime. There is the further difficulty again of the forensic evidence which established contact between the plaintiff and the deceased after 5 June 1983. Whilst, as I say, the evidence should have been disclosed to the plaintiff, it is not evidence, in my opinion, which could be said to give rise to the possibility of a miscarriage of justice.
261 Next, evidence of surveillance of the plaintiff by the police was produced. Evidence of surveillance of the plaintiff which occurred before the deceased’s disappearance and between the time of the deceased’s disappearance and the discovery of his body was not disclosed to the plaintiff. That evidence, at least of the later surveillance, also, in my opinion, should have been disclosed because it could have been used by the plaintiff to establish that during the time he was under surveillance, and after the deceased’s disappearance, there was no evidence of complicity by him in any criminal activity.
262 The plaintiff was subject to surveillance in September, October and on 1 November 1982 in connection with investigation into another murder. Those surveillance reports were not relevant, in my opinion, in relation to the charge brought against the plaintiff in relation to the death of Richard Kelvin.
263 The plaintiff was under surveillance between 12 and 16 July and on 18 July. He was also under surveillance on 28 July 1983 and 9 September 1983.
264 In July 1983, the surveillance did not occupy the whole of any day nor was it continuous. For example, on 12 July 1983 surveillance took place between 7:30 am and 10:50 pm. On the next day the police had the plaintiff under surveillance between 7:20 am and 9:20 am and between 2:30 pm and 10:00 pm. Surveillance on 14 July 1983 only occupied one hour forty minutes commencing at 7:30 am. On Friday 15 July 1983 the plaintiff was under surveillance for an hour and ten minutes from 7:30 am and for six and three quarter hours commencing at 4:15 pm. On Saturday 16 July 1983, he was under surveillance for almost two thirds of the day between 7:30 am and 11:15 pm. On Monday 18 July 1983 he was under surveillance for two hours and on Thursday 28 July 1983 for a total of about twelve hours.
265 The July 1983 surveillance reports should have been disclosed by prosecuting authorities, because they were undoubtedly relevant, in that they indicated that whilst the plaintiff was under view he did not commit any criminal activity. However they relate to a period of time after the body was, on the Crown case at least, dumped. The plaintiff sought to meet that difficulty by suggesting that the forensic evidence introduced into the trial was in error and that the body was dumped closer to the date on which it was found. The Solicitor General has observed in his report that no such claim was made at trial. Of course, at trial, the plaintiff was unaware that he was under surveillance in the period immediately after, on the Crown case, the body was dumped. No doubt it suits the plaintiff now to suggest that the body was dumped at some later time so as to be able to say that the surveillance evidence is relevant to show, at least, that during the period of surveillance, he took no active part in the dumping.
266 That leads to an assessment of the forensic evidence.
267 I have described the forensic evidence at trial. A Doctor Wallman, who is a entomologist criticised the evidence of Ms Morris, who was called in the trial. Ms Morris, who was also an entomologist gave evidence that she was able by reason of her specialty and by an examination of the corpse to determine the likely time when the corpse was deposited in the place where it was found. Dr Wallman, notwithstanding his report carries the disclaimer that he has not ‘undertaken a researched or exhaustive investigation into this question’, criticised the reports and evidence of Ms Morris claiming that there was a failure to properly record temperatures whilst the body was in situ and a failure to properly record air temperatures for several days after the body’s removal.
268 Doctor Wallman concluded:
“Despite these points, I stress that I have no way of actually demonstrating from the material made available to me that the estimation of Ms Morris that the minimum period between deposition of the corpse of Richard Kelvin and the collection of larvae from it is in fact shorter than that given by her. I am, however, expressing my professional opinion that this is a possibility. Arguments could also be put for the most recent time of deposition of the corpse being earlier than she estimated particularly since, under certain circumstances, whole days may pass before a body becomes infested ...”
269 I do not think that Dr Wallman’s report goes very far. It is critical of the assumptions upon which Ms Morris based her opinion, but Dr Wallman is not in a position to offer an opinion that the body was deposited later or earlier than 10/11 July 1983.
270 If it was deposited earlier, in a sense, that would be of no assistance to the plaintiff. The plaintiff had an alibi for part of the evening of 10 July 1983 so, if the body had been deposited before 10 July 1983, he would have lost the advantage of that alibi. If the body had been deposited later then, of course, that made the surveillance evidence more relevant in the sense that the plaintiff could have established during the period when he was under surveillance that he was not a party to the dumping of the body.
271 It is only in the latter respect that it seems to me that the report of Dr Wallman is of any assistance to the plaintiff and then, in my opinion, only marginally. It is not evidence of a kind which, in my opinion, could be said to demonstrate the possibility of a miscarriage of justice.
272 There are two aspects of the forensic evidence which are now called into question relating to the fibres found on the clothing of the deceased.
273 First, it is suggested that there may have been some flaw in the methodology used by Ms Sandra Young (nee Mattner), the Crown’s expert witness who examined the fibres. Like the Solicitor General I think there is little or nothing in that criticism. Secondly, it is suggested that there is another explanation for the high number of fibres found on the deceased’s clothes apart from that advanced at trial.
274 The suggestion which has now been made is that there is a possibility that the clothes which are subject to forensic examination were contaminated.
275 Professor Pailthorpe concluded that the number of fibres found were very high and those high numbers cannot be explained. He offered the opinion that there were particularly high numbers of fibres found on the denim jeans and again, the high numbers of those fibres found on the jeans cannot be explained.
276 He offers, in conclusion, these opinions:
“The number of fibres as claimed to have been found is so high as to raise serious concern as to their origin, particularly when the findings appear to be inconsistent with Ms Mattner’s own experiments.
Secondly, there is no explanation for the fact that some fibre groups had to be weathered in order to match whereas other fibre groups matched without weathering.
Whilst I cannot rule out the possibility of transference of fibres from the sources related to the murderer to Richard Kelvin’s clothing, it is more probable, in my view, that the fibres found on Richard Kelvin’s clothing have occurred as a result of contamination.
The totality of the fibre evidence in the case is highly suspect.”
277 It is not entirely clear what Professor Pailthorpe means by contamination. I am not sure whether he means that the evidence supports the conclusion that the fibres found on Richard Kelvin’s clothing did not come directly from the plaintiff’s house but were placed upon the clothing prior to or during the time of the forensic examination. I am not sure whether, on the other hand, he means that he accepts that some fibres were found upon the clothing but not the number of fibres observed by Ms Young. I think it is the former.
278 The Solicitor General has addressed the question of whether contamination has occurred. I do not intend to set out all of the evidence to which the Solicitor referred but he concluded rightly, I think, that any contamination must have occurred whilst the materials were with Mr Phillips and before they were delivered to Ms Young.
279 The Solicitor has referred to the evidence given by Mr Phillips at the committal proceedings and has concluded that a detailed review of the evidence leads to only two possibilities; either that there was no contamination, or Mr Phillips lied in his evidence.
280 As he pointed out Mr Phillips’ evidence was never disputed. In the Solicitor’s opinion there is no reasonable possibility that Mr Phillips lied. It follows, he said, that there was no contamination. If Mr Phillips did not lie, then Professor Pailthorpe’s opinion is wrong. Professor Pailthorpe has not had access to the evidence in relation to contamination nor spoken to Mr Phillips.
281 No criticism was made of the Solicitor’s analysis of Mr Phillips’ evidence, nor the conclusions at which he arrived.
282 In my opinion, the Solicitor was right to conclude that either Mr Phillips lied or Professor Pailthorpe’s opinion was wrong. He was also right to conclude, in my opinion, that Mr Pailthorpe’s opinion was in error. Professor Pailthorpe had none of the evidence of Mr Phillips nor did he seek access to Mr Phillips. He was not in a position to know that there had been contamination as he claimed, on the balance of probabilities, occurred.
283 I do not think that the evidence of Professor Pailthorpe would suggest there has been any reasonable possibility or any arguable miscarriage of justice.
284 The last piece of evidence relates to the cause of death.
285 Professor Plueckhahn, a pathologist, offered the opinion in a report dated 30 January 1991:
“1..... Cerebral injury resulting in superficial cortical contusions ‘on the inferior aspect of both frontal poles and the left temple lobe’ and leading to widespread subarachnoid haemorrhage (seen in slides N3, N5, N6, N7 and N10) may have caused death.
2.The anal injury is probably artefactual.
3...... I can find no evidence that there was copious bleeding from the anal injury.”
286 The cause of death was not critical to the Crown case. The Crown case was not that Richard Kelvin died from an anal injury. Indeed the Crown was prepared to accept that it had not been proved that injury occurred either before or after death. The significance of the anal injury was not that it caused death but that, whether it was caused before or after death, it would have given rise to copious bleeding or the accumulation of other fluids, the absence of which indicates that the body must have been cleaned before it was dumped.
287 Indeed, at trial the Crown rather relied on asphyxiation as the cause of death and the Trial Judge dismissed the anal injury as the cause. Professor Plueckhahn’s opinion takes the matter nowhere except to establish as the Crown was obliged, that the deceased died from unnatural causes.
288 In my opinion, the evidence of Mr Sincock, the evidence of Mr Townsley, the police running sheets and the forensic evidence taken separately does not on either test raise the reasonable possibility or allow it to be said that it is arguable that a miscarriage of justice has occurred. More importantly, all of that evidence taken collectively does not, in my opinion, give rise on either test to the reasonable possibility or make it arguable that there has been a miscarriage of justice.
289 I do not believe that the decision made by the Attorney General could ever have been subject to judicial review but having examined the decision made upon the evidence made available to him, in my opinion, it cannot be said that it was wrong in the Wednesbury sense, or at all.
290 In my opinion, if the Attorney General’s exercise of the discretion was reviewable, in the Wednesbury sense, it cannot be said that his decision is such as to amount to an abuse of power. It cannot be said that, as the repository of the power, the exercise of the power has been so unreasonable that no reasonable repository of the power could have made the impugned decision. Tested in the Wednesbury sense, in my opinion, the application for judicial review must fail.
As I have said, however, the plaintiff not only complains that the decision was in error, in the Wednesbury sense, but the plaintiff asserts that the decision was simply wrong. On no account can that be the test for judicial review but, if it is, in my opinion, then on the facts, that also fails.
Conclusion
291 For all of those reasons, in my opinion, the plaintiff’s application for judicial review must fail and, in my opinion, it should be dismissed.
292 WICKS J. For the reasons given by Prior J, I agree that the declarations and orders sought should be refused and the application dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENTHorwitz v Connor (1908) 6 CLR 38 at 40
R v Toohey ex parte Northern Lands Council (1981) 51 CLR 170 at 186 and 261; Burt v Governor-General (1989) 3 NZLR 64 (Greig J) and (1992) 3 NZLR 672 (Court of Appeal)
(1992) 3 NZLR at 676 - 678
[1976] AC 239 at 247, 248
[1985] AC 374 at 418
(1908) 6 CLR 38
(1992) 23 NZLR 678
(1958) Crim LR 474Hanratty v Lord Butler of Saffron Waldon [1971] 115 SOL J 386; Leitch v Secretary of State for Scotland [1982] SLT (Sh Ct) 76
See for example Criminal Appeal Act 1968, s16, s17; Criminal Appeal Act 1995, s3, s8, s9, s10, s14, s15, s16
Compare R v Toohey ex parte Northern Land Council (1980) 151 CLR 170 at 215
See Toohey at 219 per Mason J
155 CLR 219 - 221
See Gibbs and Aickin J at 186 and 261
Lord Goddard CJ, Cassels and Diplock JJ in Kinally
[1995] AC 374
(1988) 49 SASR 501
49 SASR 501 at 509Chief Constable of North Wales v Evans [1982] 1 WLR 1155 at 1173; Attorney-General v Quinn (1989) 170 CLR 1 at 35 - 36
Burt v Governor-General (1992) 3 NZLR at 681; Attorney-General v Quinn (1989) 170 CLR 1 at 23, 53 - 54 and 66
Barton v The Queen (1980) 147 CLR 75 at 94 - 95
FAI Insurance Ltd v Winneke (1982) 151 CLR 342 at 351, 373, 388, 404 - 405, 419 - 421; cp Dohrmann v Attorney-General (Vic) [1995] 1 VR 274
Compare FAI Insurance Ltd v Winneke (1982) 151 CLR 342, where applicant for a licence renewal had a legitimate expectation of a hearing before the renewal was refused on the basis of information unknown to the applicant.
South Australia v O’Shea (1987) 163 CLR 378
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