Conclusion
44 In considering the discussion which follows, it needs to be borne in mind that the Chief Justice did not refer to the other limbs of s 475, namely, mitigating circumstances or part of the evidence, in his remarks, and neither has been relied upon by the Supreme Court or in argument before this Court. We will also refer to the result of the direction under s 475 as being an inquiry followed by a report.
45 We have no difficulty in accepting that the Chief Justice was, and was entitled to be, satisfied that there is a doubt or question as to whether Eastman should have been convicted at his trial, as there is a question or doubt as to his fitness to plead during the trial. There is no issue about those matters in these proceedings. We also have no difficulty in accepting that, that being so, it was an appropriate case to direct an inquiry pursuant to s 475 if the section permitted it. Again, there is no issue about that in these proceedings. We need not rehearse the analysis by counsel for the Attorney-General in support of these propositions, nor conduct any detailed analysis of our own of the various judgments in Eastman in the High Court. The only question is whether, acknowledging that the doubt which exists about the justice of the conviction cannot be resolved by appeal, this can be cured by a direction pursuant to s 475.
46 We can appreciate that an affirmative answer to that question may be seen to provide a ready and convenient solution to what might otherwise be seen as a stain upon the administration of justice in the Australian Capital Territory in these very unusual circumstances. It is but a short step to say that a beneficial construction of a remedial provision, not precluded by authority, should be adopted in order to achieve that result. However, that short step involves negotiating a crevice of some magnitude. If the judgment of the Supreme Court is correct, then s 475 had always encompassed all cases in which there is a credible allegation of a defect or irregularity in the conduct of the trial (and presumably the process of bringing the accused to trial) which, if established, might lead to the conviction being regarded as unsafe or unsatisfactory. In other words, it would be a backstop against any form of injustice in relation to the criminal process which might have led to a conviction which should not have occurred. Although s 475 and its New South Wales equivalent have been repealed and another, more detailed, set of provisions substituted, the question in issue here is by no means academic (see s 422(1)(a) Crimes Act 1900 (ACT); s 474C(2), s 474E(2) Crimes Act 1900 (NSW)).
47 The conclusion which we have reached is that an inquiry and report which is limited to the fitness to plead of an accused person who has been convicted is not authorised by s 475. Put another way, a doubt or question restricted to fitness of the accused to plead is not a doubt or question as to the guilt of that person. It does not follow that questions of fitness to plead (or other procedural irregularities) are necessarily excluded from an inquiry pursuant to s 475. This is not because the inquiry becomes an inquiry into the trial process, as on an application for a new trial, but, rather, because the procedural irregularity may throw light upon the facts and circumstances which it is necessary to understand in order to assess a doubt about guilt. For example, fitness to plead could conceivably be relevant to understanding why particular evidence was or was not led at the trial, or why particular lines of cross-examination were not pursued. There could also be cases in which the mental state of the accused at the time of the trial may be relevant in assessing the mental state of the accused at the time the offence was alleged to have been committed. The Supreme Court relied upon passages from the 1985 report by Wood J of the New South Wales Supreme Court sitting as a justice of the peace in an inquiry pursuant to s 475 into the convictions of Anderson, Alister and Dunn, which were again relied upon by counsel for the Attorney-General in argument. Those passages and their full context are too lengthy to warrant setting out. In our opinion, those remarks have been misunderstood. His Honour discusses how the process of investigation and of the trial were interrelated with the question of guilt which was being examined in the circumstances of that case. This illustrates the principle which applies. It is not necessary to consider the manner in which that principle was applied in the detailed circumstances of that case.
48 In our view, the argument on behalf of the Director is substantially correct in each of its integers. The ordinary meaning of the word "guilt" relates to the accused having committed the crime in question. If it had been intended that the section would pick up errors or irregularities in the process by which the conviction took place, it would be expected that the legislature would have said "whenever any doubt or question arises as to the said conviction".
49 The development of the law concerning fitness to plead, including relevant authorities, was recently traced in the judgment of Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251 at 273-293 [112]-[203]. See also R v Judge Martin; Ex parte Attorney-General [1973] VR 339. At common law, those unfit to be tried were liable to be kept in indeterminate detention at the pleasure of the Executive. As the historical surveys in both Mailes and Judge Martin show, there have been different statutory regimes established at different times to deal with the issue. However, the question of fitness to plead has never been relevant to guilt of the crime charged and, indeed, would be irrelevant and inadmissible as to that issue. Indeed, it has been said on occasion that a jury which has decided the question of fitness to plead should not decide the question of guilt.
50 We regard the absence of remedy in relation to any procedural irregularity found to have occurred to be a telling point made by counsel for the Director. In modern times, the remedy for a trial irregularity is a new trial or, in the case of lack of fitness to plead, compliance with whatever statutory regime is in force at the time. A new trial cannot be ordered by the Executive. The statutory regime as to fitness to plead constituted by Pt 11A of the Act would not be applicable. We do not regard the possibility that the Executive might propose legislation as being a remedy in the relevant sense. That step does not involve any power of the Executive which can operate in the individual case. Furthermore, legislation can be proposed by any member of the legislature on the suggestion of any member of the public. If an inquiry in order to consider legislation were in prospect, it would be expected that the Executive would utilise such tools as the Inquiries Act 1991 (ACT) or the Royal Commissions Act1991 (ACT). Incidentally, that was the course which was taken in the Chamberlain matter to which reference was made by counsel for the Attorney-General. Furthermore, the historical material to which we shall refer supports the proposition that the purpose of the section was to aid the Executive in the exercise of the powers it did have in relation to pardon and remission of sentence.
51 We agree with the submission that the mechanism chosen by the legislature points to the obtaining of information relevant to the commission of the crime, rather than information relevant to a review of the regularity of the conduct of a trial on indictment before a jury in the Supreme Court. The procedure laid down by s 475 is rather like the role of a magistrate at a committal hearing, and is singularly inappropriate for the kind of review of the regularity of proceedings at a trial which a court of criminal appeal might now undertake.
52 If any doubt remained as to the proper construction of the section taking these factors into account (and we do not think that there does), in our opinion, it would be set at rest if the history of the section and extrinsic material in relation to it were considered. Although the Court was referred to a number of sources relevant to that issue, it is unnecessary for present purposes to go beyond the account given in the judgment of Hope JA in Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 43-47. Of particular significance in that account is the following quotation from the second reading speech when the predecessor of s 475 was originally enacted:
"… Clause 383 contains an important provision. In cases of capital offence, especially where the victim is a female, representations are frequently made to the Government - after the person charged with the offence has been found guilty - which reflect on the character, the honor, or the chastity of the prosecutrix, or some of the witnesses on her behalf. As the law stands at present the Government have not the power to institute inquiries on oath to ascertain whether the imputations or reflections are or are not well-founded. The clause provides: (cl 383(1) was read).
This appears to me to afford much more solid ground on which the Executive may proceed when they have to deal with capital cases where doubts are thrown on the character of persons connected with them."
53 In this matter in the Supreme Court the judge referred in his reasons to other passages from the judgment of Hope JA in Varley as follows:
"21. In his discussion of the provision, Hope JA, at 45, referred to the description of O'Connor J in White v The King (1906) 4 CLR 152 at 165 as to the objects of the section:
'…The object of the new provision was to enable the case to be re-opened where no point had been reserved at the trial, but some facts had come to the notice of the Government indicating that the prisoner might have been improperly convicted, and also to enable the Crown, where the prisoner's sentence had been served, and he appeared to have been unjustly convicted, to give him the opportunity of having his character cleared by a public proceeding.'
Hope JA also observed, at 46:
'Section 475 is a remedial section, and consequently should be construed beneficially. This well-known principle does not of course mean that courts can construe a statute so as to achieve a result which they think the legislature should have enacted; it means that they should construe the statute to give the fullest effect to the legislation's intention to remedy the mischief aimed at which the language of the statute will allow.
The principal mischief to which the provision was directed seems clear enough. Both in 1883 and in 1900, there was no way in which any doubt or question concerning a conviction or a resulting sentence could be effectively investigated. The Crown could arrange for an inquiry to be held, but there was no statutory basis for doing so, there could be no public inquiry, evidence could not be given on oath and persons could not be compelled to provide information. No doubt since it was established the appellate system has been able to handle many of these problems, but subject to the operation of an appellate system the Crown might be faced with a possible injustice to a convicted person which it could not deal with satisfactorily, and there would be no effective means available to the convicted person to seek to have his name cleared.'
Later, Hope JA described the application of the section to the case before him, at 48:
'To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry. To adopt the language of Nagle CJ at CL in Varley v Attorney-General of New South Wales (at 12), 'the section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s 40) … or, in a petition, before the Governor … which might cause him, for want of a better word 'unease' in allowing a conviction to stand'.'"
54 At the time of the introduction of s 475, there was only a rudimentary system of appeals from conviction and so there were no means of remedy in the hands of the Court in cases in which there may have been such doubt about the guilt in the ordinary sense of the person convicted such that the conviction ought not, in justice, to stand. The only remedy in such a case lay with the Executive power of pardon. The deficiencies in obtaining the information necessary to consider use of that power are referred to in the passages cited above. The development of a sophisticated and comprehensive appellate regime in criminal cases in the Australian Capital Territory and Australia generally in the ensuing years would not, in our opinion, support the view that the scope of s 475 would be widened now compared with its original scope. Indeed, rather the contrary would be the natural conclusion.
55 It is true that in the passages from Varley to which we have referred, and some of the passages from other cases referred to by counsel for the Attorney-General and by the Supreme Court, the section has been spoken of, in general terms, as relating to an inquiry into conviction. This, of course, is correct so far as it goes. Unless there has been a conviction, the section has no operation. It is the nature of the inquiry which is at issue and, in our opinion, none of the statements to which reference has been made focus upon an inquiry which does not involve a question or doubt as to guilt in the ordinary sense. We have already referred to the report on the convictions of Anderson, Alister and Dunn by Wood J (as he then was). The direction pursuant to s 475 in respect of which his Honour was acting as a justice of the peace related to guilt in the ordinary sense, although, as we have pointed out, his Honour looked at aspects of the trial process as part of that more general inquiry. In the present case, a general inquiry into the guilt of Eastman has been declined. If the Attorney-General remains of the view that there ought to be an inquiry, then consideration will no doubt be given as to whether it is appropriate to use other means to achieve that result.