Armstrong v R

Part 7 of the CAR Act

Division 2 of Part 7 of the CAR Act deals with petitions to the Governor, Division 3 deals with applications to the Supreme Court, Division 4 deals with inquiries into convictions and sentences and Division 5 deals with the function of this Court in addressing applications to quash convictions that arise from the invocation of Divisions 2 to 4. Section 84 is found within Division 5.
With Division 2, ss 76 and 77 relevantly provide: 76 Petitions to Governor A petition for a review of a conviction or sentence or the exercise of the Governor's pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person. 77 Consideration of petitions (1) After the consideration of a petition - (a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Attorney General may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or (c) the Attorney General may request the Court of Criminal Appeal to give an opinion on any point arising in the case. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) ……
In Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [35], the Court of Appeal observed as follows in relation to s 76: "That provision [s 76] differentiates between a 'review of a conviction or sentence' and 'the exercise of the Governor's pardoning power'. It is clear from the structure and content of Pt 7 of the Appeal and Review Act that this distinction is one of substance. There is, in effect, no control or regulation of the pardoning power in circumstances where an inquiry is not under consideration. That is consistent with the preservation of the "prerogative of mercy" by s 114 of the Appeal and Review Act. However, the steps (including the direction of an inquiry) provided under s 77(1) are constrained by the need for a doubt or question as to the person's guilt: s 77(2). The statutory scheme is thus materially different from that considered in Holzinger and Ogawa. It follows that constraints which would operate to deny that the pardoning power is amenable to judicial review do not apply with respect to the holding of an inquiry." (emphasis added)
The distinction drawn in this passage from Folbigg between a "review of a conviction or sentence" and the exercise of the pardoning power was significant to the conclusion in that case that the outcome of an inquiry into a conviction was amenable to judicial review (at [40]). It is also significant to this case in that it confirms that that the subject matter of Part 7 is not the exercise of the pardoning power per se but the initiation and conduct of inquiries into convictions and sentences and the consequences that flow from the reports of those inquires.
Consistent with the above passages from Osland and Folbigg, if the request for the exercise of the pardoning power is based on something that is not amenable to such an inquiry, for example because it is purely based on compassionate grounds, then it is difficult to see how s 77 can be usefully engaged. The inquiry that may be ordered under s 77(1)(a) is "into the conviction or sentence" and not into the potentially wider circumstances that may engage the pardoning power. Similarly, the referral of the whole case by the Attorney General under s 77(1)(b) is to be treated as an appeal against conviction or sentence under the Criminal Appeal Act 1912 (s 86). As already stated, at least so far as a conviction is concerned, purely compassionate considerations would have no role to play in determination of any such referral.
Within Division 3, ss 78(1), 79(1) and 79(2) provide: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) …..
Like s 77(1)(a) and (b), s 79(1) enables the Court to either order an inquiry or refer the whole of the case to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (see also s 86).
Within Division 4, s 81 governs the procedure at an inquiry that is directed under either s 77(1)(a) or s 79(1)(a). Section 82 provides: 82 Action to be taken on completion of inquiry (1) On completing an inquiry under this Division, the judicial officer must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to - (a) the Governor, in the case of an inquiry held on the direction of the Governor, or (b) the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court. (2) The judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal - (a) for consideration of the question of whether the conviction should be quashed (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or (b) for review of the sentence imposed on the convicted person (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence). (3) After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter (together with a copy of the judicial officer's report) to be sent to the Governor. (4) The Governor may then dispose of the matter in such manner as to the Governor appears just.
Thus, the result of s 82 being engaged is that the Governor will either receive a report on the inquiry directly pursuant to s 82(1) or will receive that report and a further report from the Supreme Court pursuant to s 82(3). In both such cases the Governor can then dispose of the matter in such manner as the Governor considers "just" (s 82(4)). Clearly one such manner of disposal is the exercise of the "pardoning power" including the power to grant a free pardon. As noted, even if that power was exercised it would still leave the conviction standing. As further explained below, one of the most important changes introduced by this scheme of review of convictions was the introduction of s 82(2) which enables the judicial officer who conducts the inquiry to refer the matter to this Court to quash the conviction in the event they consider there was a reasonable doubt about guilt (or a similar doubt about a matter affecting the nature or severity of the sentence).
As noted, Division 5 deals with matters referred to this Court. Sections 86 and 87 deal with the manner in which the Court is to deal with references or requests under s 77(1)(b), s 79(1)(b) or s 77(1)(c). Sections 84, 85 and 88 provide: 84 Quashing of conviction following pardon (1) The Court may quash a conviction in respect of which a free pardon has been granted. (2) However, the mere fact that a free pardon has been granted does not entitle the person to whom the pardon has been granted to a quashing of the conviction. (3) An application for the quashing of the conviction may be made to the Court by the person to whom the pardon has been granted or by another person on behalf of that person. (4) However, such an application may not be made in respect of a free pardon arising from an inquiry under Division 4 if the matter has previously been dealt with under this Division as a consequence of a reference to the Court, under section 82 (2) (or so dealt with under the corresponding previous review provisions), by the judicial officer conducting the inquiry. (5) The registrar of the Court must cause a copy of any application made under this section to be given to the Minister. 85 Procedure on application for quashing of conviction (1) In any proceedings on an application under section 84 - (a) the Crown has the right of appearance, and (b) the Court is to consider - (i) the report on the matter that is prepared by the judicial officer under section 82, and (ii) any report on the matter that is prepared by the Supreme Court under section 82, and (iii) any submissions on any such report that are made by the Crown or by the convicted person to whom the proceedings relate, and (c) no other evidence is to be admitted or considered except with the leave of the Court. (2) The rules governing the admissibility of evidence do not apply to any such proceedings. (3) For the purpose of enabling the convicted person to make submissions with respect to a report referred to in subsection (1), the convicted person is entitled to receive a copy of the report. (4) The provisions of Parts 3 and 4 of the Criminal Appeal Act 1912 relating to proceedings on an appeal under section 5 (1) of that Act apply to proceedings on an application under section 84, as if - (a) any reference to an appeal were a reference to proceedings on such an application, and (b) any reference to an appellant were a reference to the convicted person. … 88 Reference to Court under section 82 (2) following inquiry (1) On receiving a reference under section 82 (2) (a), the Court is to deal with the matter so referred in the same way as if an application had been made to the Court under section 84 (3), and sections 84 and 85 apply accordingly. (2) On receiving a reference under section 82 (2) (b), the Court is to deal with the matter so referred in the same way as it is required to deal with matter the subject of an application under section 84 (3), and section 85 applies to proceedings on the matter so referred as if the references in that section to an application under section 84 were references to a reference under section 82 (2) (b).
Section 84 is clearly facultative and not just declaratory. It is an additional source of jurisdiction for this Court. Absent the granting of a free pardon and, on the respondent's construction, the conduct of an inquiry under Division 4, this Court would not have jurisdiction under the Criminal Appeal Act 1912 to hear an appeal from the conviction entered by Blanch CJDC because the proceedings before his Honour were not on indictment (Criminal Appeal Act, s 5(1)). However, the question raised by this application is whether the conferral of jurisdiction by ss 84 and 85 is predicated on an inquiry having been conducted under Division 4.
The task of statutory construction begins with a consideration of the text of the provisions (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]) however that means a consideration of the whole of the provisions as well as a consideration of the particular provision in context (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28 at [69]).
On its face, s 84(1) suggests that a person such as the applicant or someone acting on their behalf can apply to this Court to quash the conviction if a free pardon has been granted and without the necessity for an inquiry under Division 4 to have been conducted. However, the balance of the provisions of Part 7 suggest that s 84 cannot be invoked without an inquiry into the conviction having been conducted and reported on. Thus, s 85(1)(b)(i) mandates the consideration of "the" report on the matter that is prepared by the judicial officer "under s 82" which can only mean the report prepared under s 82(1). Subsection 85(1)(b)(ii) also mandates consideration of "any" report prepared by the Supreme Court under s 82, which can only mean a report prepared under s 82(3). These provisions suggest that the only pathway that could have led to an application under s 84 is via an inquiry under Division 4 because such an inquiry must have yielded a report under s 82(1) and might, depending on who directed the inquiry take place, yield a report from the Supreme Court under s 82(3). If, as contended for by the applicant, there does not have be an anterior inquiry under Division 4 then there is no means by which the command in s 85(1)(b)(i) to consider the report of the inquiry can be given effect to.
This leads to the larger question of how the Court could consider the quashing of the conviction if there is no report produced under s 82. By the operation of s 85(1)(c), no evidence other than the reports produced under s 82 are to be admitted without leave. If say a free pardon was granted on compassionate grounds or a belief that the operation of a law was unduly harsh, as appears to be the case here, on what basis is this Court to exercise the function of considering whether or not to quash the conviction? During argument on the application, one answer to that contention that was suggested was s 85(4) which invokes the provisions of Parts 3 and 4 of the Criminal Appeal Act 1912. Those parts include ss 5 and 6 of that Act, the latter of which contains the three limbs upon which convictions on indictment are challenged in this Court. However, their application is still problematic in that, on this scenario, "the" report referred to in s 85(1)(b) does not exist, any material to be relied on in support of the application must be the subject of a grant of leave and, as noted, the free pardon may have been granted for reasons that bear no resemblance to any matter that falls within s 6 of the Criminal Appeal Act.
One textual matter supporting the applicant's construction is s 84(4) in that, in stating that "an application may not be made in respect of a free pardon arising from an inquiry under Division 4", that provision appears to accept that an application can be made in respect of a free pardon that does not arise from an inquiry under Division 4. There is some force in that, but it does not overcome the significance of the report(s) prepared under s 82 to this Court's determination of the application. The better view is that s 84(4) sits with s 82(2) and s 88. Section 82(2) enables the judicial officer who conducts the inquiry, of their own motion, to refer the matter this Court. In that event s 88 is engaged. Section 88 operates so that where the application concerns a conviction then it is to be treated as though it had been made under s 84(3) with ss 84 and 85 applying accordingly (s 88(1)). In that event there will be a report under s 82(1) and the provisions of s 85(1)(b) can be sensibly applied. Section 84 can be invoked in circumstances where, following the provision of the judicial officer's report, the Governor grants a free pardon but the judicial officer does not exercise the power under s 82(2). In that case s 84 empowers the grantee of the pardon or another person acting on their behalf to apply to this Court to have their conviction set aside. Subsection 84(4) simply ensures that s 84 cannot be invoked if the matter has already come to this Court via s 82(2) and s 88.
This construction of s 84 gives effect to s 85 and reconciles the role of and limitations upon this Court in considering whether to quash a conviction with the description in Osland of the circumstances in which a pardon may be granted and is consistent with the above passage from Folbigg. That said, it can be accepted that it involves a substantial reading down of the apparently plain words of s 84(1) and a limitation on what may be otherwise implicit from s 84(4). Nevertheless, a consideration of the Extraneous Materials and the legislative history of Part 7 confirm that the narrower construction of s 84 suggested by the respondent is to be preferred (Interpretation Act 1987, s 34(1)).
Part 7 of the CAR Act in its current form was originally introduced into the Crimes Act 1900 by the Crimes Legislation (Review of Convictions) Amendment Act 1993 which came into effect on 14 November 1993. It introduced Part 13A which was later removed and re-enacted as Part 7 of the CAR Act upon its passage in 2001. The Crimes Legislation (Review of Convictions) Amendment Act 1993 repealed former s 475 of the Crimes Act which relevantly provided: 475 Governor or Judge may direct inquiry etc (1) Whenever, after the conviction in any court of any person, any doubt or question arises as to his guilt, or any mitigating circumstances in the case, or any portion of the evidence therein, the Governor on the petition of the person convicted, or some person his behalf, representing such doubt or question, or the Supreme Court on application by or on behalf of the person or of its own motion, may direct any prescribed person to, and such prescribed person may, summon and examine on oath all persons likely to give material information on the matter suggested. (2) … (3) … (4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the prescribed person, before whom the same was taken, as soon as shall be practicable together with his report as to the conclusions to be drawn therefrom, to the Governor if the inquiry was directed by him or to the Supreme Court, if the inquiry was directed by the Supreme Court, and the matter shall thereafter be disposed of, as to the Governor, on the repot of the Supreme Court, if the inquiry was directed by the Supreme Court, or otherwise, shall appear to be just.
The Crimes Legislation (Review of Convictions) Amendment Act 1993 also repealed former s 26 of the Criminal Appeal 1912 which provided: Not to affect pardoning power 26. Nothing in this Act shall affect the pardoning power of the Governor, but the Minister administering the Justices Act 1902, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may: (a) refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted; (b) if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly."
Thus, former s 475(1) of the Crimes Act 1900 allowed either the Governor or the Supreme Court to order any inquiry by a "prescribed person". Former s 475(4) provided that, if the inquiry was undertaken at the direction of the Governor, then the report of the inquiry (and the depositions) should be sent to the Governor. If the inquiry was undertaken at the direction of the Supreme Court, then the report was sent to the Supreme Court which was then to report to the Governor. Ultimately, the matter was to be disposed of by the Governor as appeared to be "just". Section 26 of the Criminal Appeal Act conferred on a Minister the power to refer to a request for the exercise of the Governor's pardoning power to the Court of Criminal Appeal. One matter that was lacking from this scheme was any direct pathway from the outcome of an inquiry into a conviction to this Court to obtain an order to quash a conviction. The omission was significant because, as noted above, although the Governor could grant an unconditional or free pardon that would still leave the conviction in existence. The only body then and now that could quash the conviction was this Court.
To address this, Part 13A included a new s 474H into the Crimes Act 1900 which was not relevantly different to the current s 82 and new ss 474I to 474N which were not relevantly different to the current ss 83 to 88. In describing the effect of these provisions, the Minister stated in his Second Reading Speech (Hansard, Legislative Assembly 27 October 1993): "For convenience I shall continue to refer to the new section 474 inquiries as section 475 inquiries. The most important changes in the bill will eliminate the present incompatibility between section 475 and section 26. At the completion of the hearing of the application, the justice or judicial officer, in addition to making a report to the Governor, will now be empowered to refer the matter directly to the Court of Criminal Appeal for its hearing of the application for the quashing of the conviction. Where the justice or judicial officer does not so refer the matter, a convicted person to whom a free pardon has been granted will be entitled to apply to the Court of Criminal Appeal to have the conviction reviewed, and quashed, if that is appropriate. It is important to note that the Government proposed that these reforms governing the quashing of convictions should apply to all persons who have been pardoned, whether before or after the reforms come into force. Thus people who have already been pardoned, such as Mr Douglas Rendell and Mr Siegfried Pohl, will be able to apply to have their convictions reviewed and quashed by the Court of Criminal Appeal." (emphasis added)
This passage confirms that the amendment that became the current s 82(2) of the CAR Act was introduced to allow a pathway into this Court to quash a conviction that had been the subject of an inquiry by a judicial officer who was providing their report to the Governor. Section 82(2) conferred on that judicial officer a discretion to also refer the matter to this Court. This passage also makes clear that the amendments that became ss 84 and 85 were inserted to allow a person who was the subject of such a report and received a free pardon to themselves apply to the Court to quash their conviction even if the judicial officer did not take that course.
The operation of these provisions is borne out by considering the fate of both of the persons referred to in the above extract from the Second Reading Speech, that is Douglas Rendell and Siegfried Pohl. Each of them had been the subject of inquiries by a judicial officer into their convictions. Both of them received a free pardon and both made their own application under the equivalent of s 84 (then s 474J) for their convictions to be quashed. Both applications were successful (R v Pohl, unreported, 17 December 1993, Gleeson CJ, James J and Dunford J: R v Rendell, unreported, 22 June 1994, Gleeson CJ, Hunt CJ at CL and Badgery-Parker J). In both cases, the Court had before it the reports into the convictions. In Rendell, Badgery-Parker J noted that the "court has its own responsibility to consider the matter in the light of the material [before it], that the verdict is seen to be unsafe and unsatisfactory and to have resulted in a miscarriage of justice" (at pp 1 to 2). It is difficult if not impossible to see how that could occur under the above provision if there was no such report.
Neither of the judgments of this Court in Pohl or Rendell considered, or needed to consider, whether the then s 474J (now s 84) could be invoked without the report of an inquiry under Division 4 of Part 13A (now Division 4 of Part 7 of the CAR Act) or its predecessors. However, when considered with the second reading speech, they confirm what is otherwise suggested by the text and context of Part 7, namely that s 84 and s 82(2) were introduced to address the specific problem that an inquiry into a conviction might lead to a pardon but did not provide a means of enabling this Court to quash the conviction.
In his careful and interesting submissions, Counsel for the applicant sought to downplay the significance of the second reading speech by pointing to the observation of Spigelman CJ in Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [12] that "statements of intention as to the meaning of words by ministers in a Second Reading Speech … are virtually never useful … [and] … rarely, if ever, 'capable of assisting in ascertainment of the meaning of the provisions' within s 34 (1) of the Interpretation Act 1987". This observation was directed to the use of a statement of intention of the meaning of the words of a statute as opposed to identifying the mischief that the provisions were designed to remedy and the purpose which was sought to be achieved (see Harrison v Melhem at [162] per Mason P). The latter is their present usage.
In this applicant's case, the possible pathways into this Court to seek the quashing of his convictions, is either via a decision by the Attorney-General under s 77(1)(b), a referral by the Supreme Court under s 79(1)(b) or via s 82(2) or s 84 following an inquiry under Division 4 of Part 7. In each such case, there would first be a "review" or inquiry into the "conviction" rather than reliance on the type of material he provided when he obtained a free pardon. Nothing in this judgment should be taken as precluding those possibilities (or should be taken as addressing the merits or otherwise of Blanch CJDC's judgment).
Finally I note that in Huynh v Attorney-General (NSW) [2021] NSWSC 297 at [61] Basten JA (with whom Bathurst CJ, Gleeson JA and Payne JA agreed) observed in relation to an application under s 84 of the CAR Act that "[i]t appears that such a process must by implication be conditional upon the completion of an inquiry under Division 4, and the preparation of reports under s 82 by the judicial officer." These reasons and the construction of s 84 that I propose are in accordance with his Honour's observation.

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