CRIMINAL LAW - application for inquiry into sentence following conviction - s 78, Crimes (Appeal and Review) Act 2001 - whether change in sentencing practice brought about by High Court decision in Muldrock v The Queen capable of constituting "mitigating circumstance" in s 79, Crimes

The Submissions of the Parties 9It is patently clear from these extracts that the applicant's submissions on this application are well-founded, to the extent that the sentencing judge and the Court of Criminal Appeal applied sentencing principles that have since been discredited. The Attorney General takes no issue with this aspect of the application. However, the Attorney General does take issue with the proposition that the change in sentencing practice brought about by the High Court's decision in Muldrock is capable of meeting the criteria in s 79. In other words, the Attorney General contends that an error of this type does not constitute a "mitigating circumstance". 10The relevant mitigating circumstance identified by the applicant is "the possibility that had proper sentencing principles been applied .... the resulting sentence would have been markedly less than that actually imposed." In particular, reliance is placed upon Kirby J's judgment in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 37 - 38 wherein his Honour said of the predecessor to s 79 :- It should, in my view, be given a beneficial construction and one which furthers and does not frustrate the purpose evident in the legislation. This purpose is the safeguarding of the administration of justice and the assurance that, to the extent that our legal procedures permit it, no person shall suffer the stigma of a conviction, still less the burden of continuing deprivation of liberty or the imposition of other sanctions, where a doubt or question has arisen as to his guilt or as to evidence upon which he has been convicted. These are, after all, very serious concerns. The law must put a high store on finality, especially in criminal trials. It must uphold the decisions of the juries and of courts, duly arrived at. But it must also attend sensitively to the correction of errors where they can be demonstrated. Section 475 affords a legislative warrant to the Executive Government and the Court in certain limited circumstances, to require a review of a conviction although duly entered. Such a provision should not be given an unduly narrow construction by adopting an approach to the initiation of proceedings which tends to impede their commencement. (italics not in original) 11The applicant points out that Varley was referred to with approval by Heydon J (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreeing) in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318. 12In Eastman, McHugh J described the predecessor to s 79 in these terms (at 324) :- Section 475 can be seen as intended to authorise the Executive Government to inform itself of possible miscarriages of justice resulting from deficiencies in the evidence adduced at the trial. The section left it to the Executive Government to determine whether any actual or suspected miscarriages of justice had occurred. It also left to the discretion of the Executive Government what steps should be taken to remedy any actual or suspected miscarriage of justice. 13The applicant maintains that a referral to the Court of Criminal Appeal was made in similar circumstances to this application in Yin v R [2007] NSWCCA 350. The mitigating circumstance in that case was said to be the reduction on appeal of a co-offender's sentence after the offender had been unsuccessful in appealing the severity of his sentence. It appears that Barr J referred Yin's matter to the Court of Criminal Appeal on the basis that a parity ground had been enlivened after Yin's appeal against sentence had been determined. However, the Attorney General points out that a change in the evidence in the case on sentence (the emergence of apparently disparate sentences) underpinned the application in Yin, not legal error. 14The applicant further contends that the recommendation of the New South Wales Law Reform Commission (Sentencing; Interim Report on Standard Minimum Non-Parole Periods, Report 134 (2012)) that the use of Part 7 as a mechanism for the review of cases, where there was a doubt or question as to the sentence arising from the misapplication of the standard non-parole period scheme, as interpreted by Muldrock, ought be followed, subject to one qualification. That qualification is that the referral to the Court of Criminal Appeal ought not be determined on the basis that no lesser sentence is warranted in law. The applicant submits that the only criteria for referral is whether a doubt or question arises as to the sentence imposed, and that any consideration of whether a lesser sentence is warranted in law is to be undertaken by the Court of Criminal Appeal. I accept the latter submission. 15It is also submitted that the failure on the part of the applicant to exhaust his appeal rights to the High Court should not stand in the way of this application, given the impracticability of that course. 16The Attorney General's response to the applicant's argument presents a powerful case for a construction of Part 7 that confines applications under s 78 to the correction of factual, not legal error. 17The authorities upon which the applicant relies, including White v The King (1906) 4 CLR (Pt 1) 152, Varley and Eastman all refer to deficiencies in the evidence, or facts which come to the notice of the Crown after conviction, suggesting that there had been a miscarriage of justice. To the same effect is Johnson J's decision in Application of Peter Holland [2008] NSWSC 251 at [10]. The NSW Law Reform Commission's recommendation in Report 134 was made without a detailed consideration of the scope of Part 7. 18The Attorney General also calls in aid the principle of finality as a "central and pervading tenet of the judicial system" : D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17. It must be acknowledged that in the criminal law, that principle is qualified by the appellate system :- The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". (citations omitted) D'Orta at 17 - 18.) 19The existence of the procedure under Part 7 of the Act should also be regarded as a qualification to the principle of finality with respect to convictions and sentence matters, but to what extent ? 20By way of answer to that question, the Attorney General submits that the principle of finality forms part of the general system of law for the purposes of the application of the rules of statutory construction. The Attorney General relies upon the following dicta by Hayne and Bell JJ (Kiefel J agreeing) in X7 v Australian Crime Commission [2013] HCA 29 at [86] and [87] :- The question of statutory construction which arises in this case requires the consideration and application of a well-established rule. That rule, often since applied, was stated by O'Connor J in Potter v Minahan by quoting Maxwell's On the Interpretation of Statutes : "It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness ; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." (emphasis added) This rule of construction has found most frequent application in this Court with respect to legislation which may affect rights. In that context, it has come to be referred to as a "principle of legality" : But the rule is not confined to legislation which may affect rights. It is engaged in the present case because of the effects which the asserted construction of the ACC Act provisions authorising compulsory examination would have not only on the rights, privileges and immunities of a person charged with an indictable Commonwealth offence, but also on a defining characteristic of the criminal justice system. In particular, it would alter to a marked degree the accusatorial nature of the criminal justice system. To hold that the general words of the relevant provisions of the ACC Act authorise compulsory examination of a person charged with an indictable Commonwealth offence about the subject matter of the offence charged would thus depart in a marked degree from the "general system of law". 21Whilst acknowledging that Part 7 is remedial and should be interpreted beneficially, the Attorney General maintains that if the legislature intended that Part 7 displace the principles of finality, merger and res judicata where errors of law are concerned, it would have expressed its intention clearly. It is accepted that Part 7 displaces the principle of finality where errors of fact are concerned. 22An applicant under the section cannot determine the outcome of the application, that is, whether there is an inquiry by a judicial officer or a referral to the Court of Criminal Appeal. It is therefore submitted that the restriction of the mechanism under s 78 to an application for an inquiry is suggestive of the centrality of the availability of new evidence, rather than a consideration of the possibility of legal error.

Resolution 23The construction of "mitigating circumstances" in s 79(2) cannot, in my view, be strained to accommodate errors of law. I have reached that conclusion for the following reasons. 24Section 79 has remained largely unchanged since the introduction of its predecessor in NSW in the Criminal Law Amendment Act 1883. Section 383 of that Act provided that :- Whenever after the conviction of a prisoner any doubt or question arises as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein it shall be lawful for any Justice by direction of the Governor on the petition of the prisoner or some person on his behalf representing such doubt or question-or by direction of a Judge of the Supreme Court of his own motion-to summon and examine on oath all persons likely to give material information on the matter suggested. 25In this original provision, the doubt or question (admittedly a low threshold : Eastman per Heydon J at [134]) arises either as to the guilt of the applicant or as to any mitigating circumstance or as to any part of the evidence in the case. The disjunctive indicates that the legislature always envisaged the availability of an inquiry into guilt or sentence. In other words, the reference to "mitigating circumstance" distinguishes matters capable of compromising guilt from matters capable of mitigating the penalty. Section 383 was re-enacted largely unchanged in the Crimes Act 1900 as s 475. These versions of the provision simply grounded the application as one made "after conviction". 26In late 1993, Part 13A was introduced in lieu of s 475. For the first time, the procedure was framed in terms of an inquiry "into a conviction". Section 474E changed the relevant criteria to the extent of the omission of "or" : that 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". These amendments inadvertently restricted inquiries into convictions only until the position was corrected in 1996 with the Crimes Amendment (Review of Convictions and Sentences) Act, which amended Part 13A by the insertion of the words "and sentences" in s 474D of the Crimes Act 1900. Otherwise, over the life of the various incarnations of s 79, "mitigating circumstances" was interpreted as material capable of lessening a person's culpability for the offence (for example, evidence going to provocation, substantial impairment or excessive self-defence) or material providing an alternative basis for leniency (for example, excessive hardship to others affected by the applicant's incarceration, or assistance to authorities not taken into account at sentence). In such circumstances, a reduction in penalty may be warranted. 27It is clear from the history of the provision and from the applications made to this Court that an inquiry invariably proceeds on the basis of fresh material or additional evidence that casts the conviction and/or the sentence in a different light to that prevailing at first instance or on appeal : see Application of Peter James Holland [2008] NSWSC 251 at [5] to [11] . 28McHugh J in Eastman said as much at 327 :- Section 475 as a whole was concerned with what happened at the trial and with new evidence that suggests the prisoner should not have been convicted or that his or her culpability is less than might appear from the conviction. 29In Eastman, McHugh J interpreted "mitigating circumstances" in that way (at 326) :- Mitigating circumstances of the case may cover - indeed ordinarily would cover - matters other than the acts or omissions that constitute the offence. In most cases, that limb would be concerned with evidence that could not be or was not given at the trial. In a murder case, for example, the mitigating circumstances limb might cover matters that were legally irrelevant to the guilt or innocence of that accused. Take a case where a woman was convicted of murder but claimed that, although she was a victim of the "battered wives syndrome", the law did not permit her to raise the defence of provocation. The "mitigating circumstance" limb of s 475 was wide enough to authorise a direction to take evidence concerning the claim. Similarly, that limb would have authorised a direction to take evidence concerning the diminished responsibility of the accused in the days before the law permitted a jury to use the diminished responsibility of the accused to find manslaughter rather than murder. And there is no reason why such a direction could not have been given after the law recognised diminished responsibility as an ameliorating factor, if it appeared that the accused might have suffered from that condition, whether or not that "defence" was raised at the trial. 30Significantly, McHugh J considered that :- The power conferred by s 475 did not extend to investigating every possible miscarriage of justice. It did not, for example, extend to doubts or questions concerning any element of the trial process that might have affected the conviction of the prisoner. That seems to follow inevitably from the direction to... "summon and examine on oath all persons likely to give material information .." ..... Thus, the section would not have authorised a direction concerning the directions of the trial judge. (at 324) 31There have been a limited number of applications for referral or inquiry concerning sentence only : Application of Antoun El Hani [2007] NSWSC 330 ; Yin ; Stevens - Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2011] NSWSC 1252 ; The Application of Stevens (unreported, 23 May 2012). One of those applications considered a claim that the judge had committed factual errors in the sentencing process : Stevens [2011]. El Hani and Yin were solely concerned with additional evidence going to the imposition of sentence. 32In The Application of Stevens (unreported, 23 May 2012), Beech-Jones J considered an application based upon disparity with a co-offender, who was sentenced after Stevens and after his appeal against severity to the Court of Criminal Appeal. The Attorney General queried whether the application of the parity principle was a "mitigating circumstance" but the point was not decided. In any event, the matter appears to be on all fours with Yin. 33I am not aware of any application for an inquiry into conviction or sentence that has proceeded solely on the basis that the law, although correctly applied at the time of the relevant proceedings before a court, has changed after the applicant had exhausted his/her appeal rights. Even before an offender's appeal rights have been exhausted, the principle of finality may play a decisive role in dismissing an appeal or refusing to grant an extension of time within which to file an appeal, where the law has changed between conviction, sentence and appeal. 34Examples of the consideration of the principle of finality in the context of conviction and/or sentence appeals to the Court of Criminal Appeal, where an extension of time within which to appeal was necessary, are R v Ramsden [1972] Crim LR 547, R v Unger [1977] 2 NSWLR 990, R v Gregory [2002] NSWCCA 199, Etchell v R [2010] NSWCCA 262 and most recently, Montero v R [2013] NSWCCA 214 per Leeming JA. The latter case is pertinent because it concerned an appeal against sentence which was filed out of time and which complained of Muldrock error (in addition to a further ground). 35Leeming JA said at [2] to [7] :- There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality. That principle was applied in R v Ramsden [1972] Crim LR 547, where a subsequent decision of the Court of Criminal Appeal had laid down the law differently from that which had been applied when Mr Ramsden was convicted, yet his application for an extension of time to appeal was refused, notwithstanding that it was assumed that the summing up at his trial was with the benefit of hindsight shown to be defective. This Court applied the same principle in Reg v Unger [1977] 2 NSWLR 990, where the applicant had been convicted of selling Indian hemp pursuant to a provision under the Poisons Act which deemed possession of in excess of a prescribed quantity of a drug of addiction to amount to possession for supply or sale. Street CJ, with whom Begg and Ash JJ agreed, proceeded on the basis that the regulation prescribing the quantity was invalid and had not been validated retrospectively by the remedial legislation (at 996B). The Chief Justice said that there was no taint necessarily introduced into the conviction by reason of the subsequent finding that the regulation on which it depended was invalid. That was a consequence of the doctrine of merger, as explained by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106 (another conviction permitted to stand notwithstanding it was based upon a disallowed regulation). Gageler J referred to the same doctrine as underpinning the independent legal force possessed by judicial orders in State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737 at [53] (another case where a man was imprisoned pursuant to orders which would never have been made had the judges at first instance and on appeal correctly determined that the Community Protection Act 1994 was invalid). It may seem hard for a conviction to be permitted to stand when it is based upon a superseded view of the common law or upon an Act or regulation which has later been held to be invalid. That serves to illustrate the importance of the broader issues which are involved. Street CJ explained the position, in a highly influential passage, as follows (at 995F-996A): "This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and statutory concept - it finds no basis in the common law itself. This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law." For those reasons, the Court in Unger did not exercise its discretion to extend time. Those principles have been applied in this Court, including in R v Gregory [2002] NSWCCA 199 at [38]-[45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19]-[24]. They were applied by the New Zealand Court of Appeal in R v Knight [1998] 1 NZLR 583 at 587 - 588 on which in turn the Hong Kong Court of Final Appeal has consistently relied (the most recent decision is Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478: see at [9]-[11] and [53]-[59]). All four of those decisions recognise that "exceptional" circumstances must be shown to warrant departing from the principle of finality. What will amount to the requisite exceptional circumstances cannot be defined exhaustively. However, in the present case, the application is more than three years out of time, and the majority of the sentence has been served. Most importantly, there is no explanation at all for the delay from 30 October 2009 until late 2011, save that the decision in Muldrock pointed to the possibility of an argument that the sentencing judge, who was bound by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, had erred. That demonstrates the wholly adventitious background to the application which is now made. In my view this is a clear case for not departing from the principle stated in Unger. 36These remarks are obiter, given that Hulme J and Button J expressly refrained from expressing a concluded view on that matter. However, they suggest that an applicant seeking leave to appeal against sentence solely on the ground of Muldrock error, who requires an extension of time within which to file such an appeal, may encounter a significant hurdle. Do the principles that influence the resolution of that issue play a part in the determination of a s 78 application which proceeds on exactly the same basis ? If they don't, one is confronted with a somewhat unsatisfactory outcome : a referral of a sentence to the Court of Criminal Appeal under s 79 will allow for a reconsideration of sentence that might be denied to an applicant who has not previously exercised a right of appeal, but who is relevantly out of time. 37There is yet another consideration : whilst this Court has the power, on an application for an extension of time within which to file an appeal, to consider the merits of the appeal, grant that extension and allow the appeal in order to correct a miscarriage of justice, notwithstanding the principle of finality, a judge performing the administrative act pursuant to ss 78 and 79 is bound by the terms of the legislation. As McHugh J noted in Eastman, the provisions do not allow for the correction of every miscarriage of justice. 38I am of the view that the Attorney General's submissions concerning the interpretation of s 79 must be accepted, despite the evident disparity between those offenders who exercised their right of appeal against sentence pre-Muldrock and those who did not. That disparity is the result of a change in the law, the consequences of which have been resolutely met by the application of the concept of merger. There is nothing in the statutory scheme of Part 7 of the Crimes (Appeal and Review) Act that evinces an intention to depart from that precept. 39The application is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2013