Eastman v The Australian Capital Territory [2008] ACTCA 7

Court of Appeal (ACT)|2008-04-21|Before: Dowsett JJ, Moore J

1. I have had the benefit of reading the reasons for judgment of Stone and Dowsett JJ in a draft form. I agree the appeal should be dismissed with costs. In particular, I agree with their Honours' conclusion at [58] that bias has not been demonstrated. Other matters have effectively been dealt with in other judgements given by the Court with judgment in this matter.

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

IN THE SUPREME COURT OF THE ) No. ACTCA 13-2007

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. In these proceedings the respondent was originally Mr John Stanhope MLA who has, at all material times, been the Chief Minister of the Australian Capital Territory (the "ACT"). He was previously also the Attorney-General. At first instance Lander J concluded that the proper respondent was the "Attorney-General" and not Mr Stanhope personally. The proceedings were amended accordingly. On appeal, the question received further consideration, leading to the dismissal of the Attorney-General from the proceedings and the joinder of the ACT as respondent.

3. This matter was heard with ACTCA 14 of 2006 and ACTCA 14 of 2007. Much of the relevant background is recorded in the reasons prepared in those matters and need not be repeated at length here.

4. On 3 November 1995 the appellant was convicted of the murder of Colin Winchester, the Assistant Commissioner of the Australian Federal Police, and subsequently sentenced to imprisonment for life. He appealed against such conviction, such appeal being to the Full Court of the Federal Court of Australia. That appeal was dismissed. The High Court granted the appellant special leave to appeal but, on 25 May 2000, that appeal was dismissed.

5. Although it has now been repealed, the present proceedings arose out of s 475 of the Crimes Act 1900 (ACT) (the "Crimes Act") which provided:

(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.

(2) The attendance of every person so summoned may be enforced, and his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.

(3) Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the magistrate shall allow such person to be present, and to examine any witness produced before such magistrate.

(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 magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the inquiry was directed by him or her, or to the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just.

6. The Executive is established by s 36 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the "Self-Government Act"). Its members are the Chief Minister (who is elected by the Legislative Assembly from amongst its members) and the other Ministers (who are appointed by the Chief Minister). It appears to perform the functions of a cabinet and an executive council.

7. On 31 May 2001 the appellant applied for an inquiry pursuant to s 475 of the Crimes Act. On 7 August 2001 Miles CJ granted that application, the question or doubt being as to the appellant's fitness to plead during the whole, or any part of, his trial. A magistrate then conducted the relevant inquiry. Between the time at which Miles CJ directed the inquiry and the time at which he reported to the Executive (the "report"), his Honour's commission as Chief Justice expired. However he continued as an acting Judge and reported in that capacity. For convenience we will refer to his Honour as if he had continued as Chief Justice throughout the whole process conducted pursuant to s 475.

8. In summary, his Honour reported at paras 278-280:

278. As it has not been shown that Mr Eastman was unfit to plead during the whole of his trial or during any part of it, or that an unresolved question as to his fitness resulted in a miscarriage of justice, I do not recommend that the Executive take any action to set aside Mr Eastman's conviction.

279. At the risk of repetition it needs to be understood, however, that if the trial judge had been made aware on the morning of 22 May 1995 of the opinions of Mr Eastman's previous counsel, Mr Williams and Mr O'Donnell, and of the reports of Dr Hocking and Dr Milton, which were in the possession of the prosecution, it is highly likely that the trial judge would have determined that there was a question as to Mr Eastman's fitness to plead. That determination would have required an order which would have resulted in a determination of the Mental Health Tribunal whether Mr Eastman was or was not fit to plead. Furthermore, if in the appeal to the Federal Court, that Court had been made aware of what is now known to have been evidence available then as to Mr Eastman's unfitness, it is likely that that Court would have allowed the appeal, set aside the conviction and ordered a new trial. It is now put on Mr Eastman's behalf that he should not suffer that loss of the opportunity of a new trial. I reject that submission on the ground that on all the material now available there was no actual miscarriage of justice in what occurred. In my view, Mr Eastman was fit to plead throughout his trial. If there was a question as to his fitness to plead on the morning of 22 May, that question was resolved by his demonstrated fitness thereafter.

280. If the Executive was of the view, contrary to my own, that the fact that the issue of fitness to plead was not raised with the trial judge or in or by the Federal Court has resulted in a miscarriage of justice, then it should consider whether the conviction ought be set aside and a new trial take place. If that were the Executive's assessment, it would be necessary to introduce legislation into the Legislative Assembly in order to bring about the desired effect. Alternatively, the Executive might introduce legislation to treat this report as a report under Part 20 of the Crimes Act as it now stands and to confer power on the Full Court of the Supreme Court to decide whether to confirm or quash the conviction and order a new trial accordingly under present s 430. I do not recommend either of those courses.

9. His Honour then made some observations concerning systemic problems and possible reforms. The Executive eventually decided to take no further action in connection with the appellant's conviction and sentence (the "decision").

10. The appellant commenced proceedings seeking review of:

... the decision of the Australian Capital Territory Executive (the Executive), pursuant to s 475(4) (repealed) of the Crimes Act ... made on 22 February 2006 and furnished to the Applicant on 6 March 2006, to take no further action in connection with the matter of the Applicant's fitness to plead at his trial for the murder of Colin Winchester ... .

11. The application was amended on 12 July 2006 so as to claim the following orders:

1. An order setting aside the Executive's decision.

2. A declaration that, the question of the Applicant's fitness to plead having arisen at the trial, the failure to refer that question to the Mental Health Tribunal:

(a) produced an unresolved question as to the applicant's fitness to plead at trial;

(b) would have required the Full Court of the Federal Court, on appeal from the Applicant's conviction, to order that the Applicant's conviction be quashed.

3. A declaration that [Mr Stanhope] is disqualified from participating in any consideration by the Executive of the power conferred on the Executive by s 475(4) (repealed) of the Act.

4. An order referring the matter to which the Executive's decision relates to the Executive, excluding [Mr Stanhope], for further consideration under s 475(4) (repealed) of the Act to dispose of as shall appear to be just and subject to such directions as the Supreme Court thinks fit.

5. Such further or other orders as the Court thinks appropriate.

6. Costs.

12. This relief was apparently sought pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the "ADJR Act"). The grounds were, in effect, that:

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the decision was infected by actual or apprehended bias on the part of Mr Stanhope (the "first ground");

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the decision was not authorized by s 475, an inquiry and report being pre-conditions to the exercise of such discretion and there being no such report, the report being 'vitiated by reviewable error' (the "second ground"); and

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the decision was an improper exercise of the power conferred by s 475(4) in that the Executive took into account an irrelevant consideration in exercising of the power, namely the content of the report (the "third ground").

13. Alternatively, the appellant sought prerogative relief pursuant to s 34B of the Supreme Court Act 1933 (ACT) (the "Supreme Court Act"), such relief being:

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the quashing of the decision;

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a declaration that the question of the appellant's fitness to plead arose at the trial and was not resolved, so that the appellant's earlier appeal should have led to the quashing of his conviction; and

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a declaration that Mr Stanhope should not participate in any further decision-making concerning the report.

14. The grounds for such relief were the same as those advanced in support of the claim for relief under the ADJR Act.

15. The second and third grounds depended upon the appellant establishing that the report was invalid. That matter was ventilated before Lander J in Action No. 853 of 2005. In reasons published on the same day as the reasons which are the subject of this appeal, his Honour dismissed the appellant's challenge to the validity of the report, so that grounds 2 and 3, as identified above, necessarily failed. In ACTCA 14 of 2007 this Court upheld his Honour's decision in Action No. 853 of 2005. In those circumstances it is unnecessary for present purposes to consider grounds 2 and 3, leaving for consideration the question of bias or apprehended bias.

16. Lander J held, in connection with ground 1, that:

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the decision was not reviewable pursuant to the ADJR Act, it not being a decision made 'under an enactment';

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the decision was not subject to review pursuant to s 34B of the Supreme Court Act, save as to any failure to afford procedural fairness to the appellant; and

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there was no such failure.

17. The appellant now asserts that these findings were erroneous in law.

18. The allegation of bias or apprehended bias arose out of the conduct of Mr Stanhope in connection with the report. That conduct is set out in context at [6]-[12] in the reasons for judgment as follows:

6. On 11 October 2005 Mr Stanhope appeared on television. He said, "I wouldn't be surprised if Mr Eastman seeks to pursue the matter. Its (sic) consistent with his history". The television reporter said, "... the ACT's Chief Police Officer believes Eastman has exhausted all his legal options". Audrey Fagan (then the ACT's Chief Police Officer) said, "For Mrs Winchester and the family I think this brings closure and I trust that they'll be very welcome of the news along with ACT policing, it's been a tough 17 years". On the same day, Mr Stanhope also appeared on WIN TV. In that interview he said, "I think this should be the end of it, I'm hopeful this is the end of it. I don't think there is anywhere else to go". He also said, "I understand he has spent much time in Goulburn and much time in Lithgow prisons. He will of course remain in that system until we've built a prison in the ACT".

7. On 13 October 2005 Mr Stanhope wrote to the applicant:

His Honour Acting Justice Jeffrey Miles has now reported to the Executive of the Australian Capital Territory following his inquiry under s 475 of the Crimes Act 1900. A copy of that report is enclosed.

I have forwarded a copy of this report to your legal advisers, Messrs Tony Hargreaves and Partners. It is my intention to publish His Honour's report in its entirety.

8. On 21 October 2005 the applicant sought official notification of the Executive's decision and a statement of reasons pursuant to s 13 of the ADJR Act. On 24 November 2005 Mr Stanhope wrote to the applicant:

I refer to your letter dated 21 October 2005.

The initial consideration of the report of Acting Justice Miles by the Executive related to the distribution and publication of the Report.

You will be advised of the Executive's determination as to the disposition of the matter when it has been further considered by the Executive.

9. On 21 November 2005 the applicant wrote to Mr Stanhope requesting a response to his request of 21 October 2005. On 7 December 2005 Mr Stanhope wrote to the applicant:

I refer to your letter dated 21 November 2005 which doubtless crossed with my reply of 24 November 2005 to your letter dated 21 October 2005.

As noted in my letter, you will be advised of the Executive's determination as to the disposition of the report of Acting Justice Miles when it has been further considered by the Executive.

A determination by the Executive in relation to the report prepared by Acting Justice Miles is not a decision to which the Administrative Decisions (Judicial Review) Act 1989 applies. You will, however, be informed of the basis upon which the Executive makes it determination regarding Acting Justice Miles' report.

10. On 13 February 2006 I conducted a directions hearing in the matter of Eastman v Miles (SC853/2005). During that hearing, counsel for Mr Eastman, Ms Walker said:

The difficulty in relation to Mr Eastman's matter is that whilst the inquiry has made certain recommendations, no decision has yet been made in terms of how those recommendations are to be dealt with or implemented. Indeed, I'm instructed that when the inquiry first reported to the executive the Chief Minister, also the Attorney-General made a statement to the press in the form of a release on about 10 October of 2005 to the affect (sic) that he accepted the recommendations of the report. Which would suggest that they were there all to be actioned on the basis that there was found to be nothing to be acted upon in real terms, so the status quo would remain.

Following some representations by my client to the Chief Minister who wrote to him, the response was that the Executive hadn't in fact accepted the recommendations of the report, only authorised the release of the report and the Executive was still considering that report. So effectively it remains un-acted upon just sitting there in the ether. And the further information was given to my client that the Executive would then ultimately decided (sic) upon what to do with the report, give reasons although they're not required pursuant to section 13 of the ADJR Act and apparently nothing has been heard since.

That leaves the Attorney-General therefore in a situation of not having acted on the report that's before it and yet seeking to defend effectively the report before this court and it would appear that there is a potential conflict between those two roles in our submission.

11. Clearly, those comments prompted Mr Stanhope to issue a press release on 14 February 2006. The press release included:

"Today's Canberra Times reported Mr Eastman's barrister, Lorraine Walker, as suggesting that the ACT Government was yet to make a final decision on whether or not to grant Mr Eastman a new trial for the murder of Australian Federal Police Assistant Commissioner Colin Winchester in 1989," Mr Stanhope said.

"The barrister was reported by the newspaper as saying that it was because of the Government's failure to make a decision on a fresh trial that she was opposing my intervention, as Attorney-General, in the proceedings now before the court. These proceedings are a challenge to the findings of the judicial inquiry, which was conducted by a retired Supreme Court judge, Jeffrey Miles and handed to the Government last October. Acting Justice Miles found that Mr Eastman was fit to plead throughout his trial.

Mr Stanhope said that the Government was not required to consider - and was not considering - whether Mr Eastman should be granted a fresh trial.

"As far as the Government is concerned, Mr Eastman has exhausted his legal avenues of appeal. As I said at the time that I received Acting Justice Miles' comprehensive report, I was pleased that the matter could now be considered to be at an end.

"Indeed, the ACT Government has no statutory or prerogative power to direct a new trial. The ACT Government Solicitor confirms that the Executive is not required to do anything further in relation to the Miles report. It is not required to, and it doesn't intend to.

12. On 22 February 2006 Mr Stanhope wrote to the applicant informing him that the Executive was taking no further action in connection with the matter of his fitness to plead at trial:

I refer to my letter of 7 December 2005.

The Executive has fully considered the report of the Honourable Jeffrey Allan Miles. His Honour found that:

1. there was no miscarriage of justice in your trial; and

2. it was not shown that it was likely that you were unfit to plead.

Accordingly, the Executive is taking no further action in connection with the matter of your fitness to plead.

19. A considerable amount of time has been taken up in seeking to identify the courses which were open to the Executive in disposing of the issues raised in the s 475 inquiry and the report (the "matter"). In effect, the appellant submitted that s 475 authorized the Executive to take such steps as might be necessary in order justly to dispose of the matter, including securing the legislative quashing of his conviction and sentence. However the section did not, in terms, confer such power or any other specified power apart from the power to direct an inquiry. Probably, it was contemplated that the Executive would take such steps as it thought appropriate and were within its power pursuant to the Self-Government Act or any other law, including the common law.

20. This appears to have been the view of Heydon J (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ concurring) in Eastman v Director of Public Prosecutions [2003] HCA 28; (2003) 214 CLR 318. His Honour there outlined the legislative history of sections such as s 475. As is well known, the right of appeal is statutory. Prior to the introduction of such a statutory right in connection with criminal convictions, sections of this kind provided a mechanism for dealing with possible miscarriages of justice. Since the introduction of statutory appeals, a similar mechanism has been used to deal with doubts concerning convictions where appellate rights have been exhausted. At [94] et seq Heydon J recognized the limited remedies available in the event that the s 475 process disclosed an injustice. His Honour did not suggest that s 475 itself conferred a suite of powers wide enough to authorize any step which the Executive considered necessary in order to right any demonstrated wrong. We proceed upon the basis that s 475 does not, itself, confer powers upon the Executive, apart from the power to initiate an inquiry. The questions, then, are as to the powers available to the Executive for the purposes of s 475, and as to the extent of the Executive's obligation to "dispose" of the matter under that section.

21. Pursuant to s 37 of the Self-Government Act the Executive:

... has the responsibility of:

(a) governing the Territory with respect to matters specified in Schedule 4;

(b) executing and maintaining enactments and subordinate laws;

(c) exercising such other powers as are vested in the Executive by or under a law in force in the Territory or an agreement or arrangement between the Territory and the Commonwealth, a State or another Territory; and

(d) exercising prerogatives of the Crown so far as they relate to the Executive's responsibility mentioned in para (a), (b) or (c).

22. It is not in dispute that para 37(d) confers upon the Executive the power to exercise the prerogative of mercy. In Eastman at [94]-[96] Heydon J identified exercise of that prerogative as the course generally taken in order to remedy any miscarriage of justice identified by a process such as that prescribed in s 475. His Honour also identified the possibility of special legislation overturning the conviction and otherwise providing for the future disposition of the matter and referred to other possible steps suggested by Madgwick J in Director Public Prosecutions (ACT) v Eastman [2002] FCAFC 209; (2002) 118 FCR 360 at [109]. Madgwick J there relevantly referred to:

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moderating the conditions of any continued confinement of the prisoner;

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remission of the sentence in whole or in part;

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conditional or unconditional release; and

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an ex gratia payment.

23. We find no authority for any of these steps in s 475 itself. Such authority must therefore be found elsewhere.

A person aggrieved by a decision to which this Act applies may apply to the Supreme Court for an order of review in relation to the decision on any 1 or more of the following grounds: ... .

It is not presently necessary to identify the grounds.

25. In the dictionary which forms part of the Act the expression 'decision to which this Act applies' is defined to mean 'a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in Schedule 1.'

26. It might be said that s 475 required that the matter be disposed of in such a way 'as to the Executive ... shall appear to be just'. Paragraph 3A(1)(g) of the ADJR Act provides that a reference to the making of a decision includes a reference to 'doing or refusing to do anything else'. The appellant appears to have accepted that the Executive decided not to take action, or to take no further action, in connection with the report. However he has asserted that it should have decided to take some action. Although it is not entirely clear, his view seems to be that the Executive should have decided to take whatever steps were necessary to set aside his conviction and sentence, the necessary power to do so being conferred by s 475. We have rejected this interpretation of s 475. The Executive has no power to set aside the conviction and sentence. Although the appellant did not accept that position, the proceedings focussed on the availability of other relief, in particular the exercise of the prerogative of mercy and legislative intervention.

27. The Executive might have exercised the prerogative of mercy pursuant to para 37(d) of the Self-Government Act. However that Act is an act of the Commonwealth Parliament and not an "enactment" for the purposes of the ADJR Act. See the definition of "enactment" in the dictionary which is part of the ADJR Act and s 7 of the Legislation Act 2001 (ACT). Any decision to exercise or not exercise the prerogative is therefore not reviewable pursuant to the ADJR Act. For reasons given by Lander J, it is also not reviewable pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). As to the possibility of legislative intervention, we see no way in which the Executive can be compelled to bring about that result. As we understand it, only a member of a legislature may introduce legislation. Of course we frequently speak of a government doing so. This implies that the executive government is fostering the legislation. Nonetheless the actual introduction is by a member who is usually also a minister. As far as we are aware, this Court has no power to compel a member of the ACT Legislative Assembly to introduce legislation. In those circumstances there would be no point in compelling the Executive to prepare legislation for introduction. In any event the decision to do so (or not to do so) would not be "under an enactment" for the purposes of the ADJR Act.

28. It may be arguable that the decision to take no action in connection with the report was, itself, a decision "under" s 475 of the Crimes Act. There would, however, be considerable difficulty in identifying the decision which should have been made in place of it, given the need to refer to other powers of the Executive. In any event the decision would only be reviewable under the ADJR Act if it were of an administrative character. In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 the majority (Gummow, Callinan and Heydon JJ) said at [78]-[80]:

78 ... As noted earlier in these reasons, the presence in the definition in the ADJR Act of the words "(whether in the exercise of a discretion or not ...)" ... indicates that the decision be either required or authorised by the enactment. Mayer ... shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.

79. The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

80. The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? ... To adapt what was said by Lehane J in Lewins ..., does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

29. In our view the decision to take no action had no capacity to affect legal rights. There was never any right to action by the Executive, and so no such right was affected. One might say that there was potential for a favourable exercise of some discretion derived from some other source but, as far as we know, any such potential remains, notwithstanding the decision.

Review pursuant to s 34B of the Supreme Court Act

30. Pursuant to s 34B the Court has power to grant any relief by way of a habeas corpus or prerogative order. The term "prerogative order" means:

an order the relief under which is in the nature of, and to the same effect as, relief by way of -

(a) a writ of mandamus, prohibition or certiorari; or

(b) an information in the nature of quo warranto.

31. For reasons similar to those given in connection with the ADJR Act, we do not consider that such relief would go in order to compel the presentation of legislation. Whether a decision made pursuant to para 37(d) of the Self-Government Act, to exercise or not to exercise the prerogative of mercy, is reviewable pursuant to s 34B of the Supreme Court Act may be open to doubt. This Court's jurisdiction is primarily derived from s 48A of the Self-Government Act which provides that:

(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

(2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

(3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

32. An "enactment" includes a law made by the ACT Legislative Assembly (s 3) and so, in areas in which it has legislative power, that body may confer jurisdiction upon this Court. This it has purported to do by s 34B of the Supreme Court Act. However it seems anomalous that ACT legislation should purport to confer jurisdiction to review the exercise of power conferred on the Executive by the Commonwealth Parliament. We note also that the conferment upon the Executive of the power to exercise the prerogative of mercy may not put it in the same position as a vice-regal representative in so doing; see the reasons of Gibbs CJ in The Queen v Toohey Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 182-186). This may affect the applicability of settled views as to the exercise of the prerogative. Neither question was addressed in argument. We will return to them at a later stage.

33. As Lander J demonstrated, numerous recent decisions have raised doubts as to the extent to which exercise of the prerogative of mercy may be reviewed by the courts. Those decisions demonstrate a departure from the traditional view that such exercise is not reviewable. In Australia, that position was established by the decision of the High Court in Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 at 40 where Griffith CJ said on behalf of the Court:

... no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.

34. It is of some importance that the relevant Victorian legislation conferred upon the Governor in Council power to make rules and regulations for the mitigation or remission of sentence, and such regulations were made. The prisoner asserted that under the legislation and regulations he was entitled to release.

35. The traditional view in England appears from the decision in de Freitas v Benny [1976] AC 239 at 247-248 where Lord Diplock said:

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.

36. Of particular importance is the denial of any implicit procedural "rights" in the person seeking a favourable exercise of the prerogative of mercy.

37. Although some of the judgments in The Queen v Toohey; Ex parte Northern Land Council may suggest a change in approach to the question, the High Court has not yet departed from the decision in Horwitz v Connor.

38. The cases cited by Lander J suggest that courts in New Zealand, South Australia and England have departed, or have considered departing, from the traditional view identified above. That trend appears to have been driven by two factors. The first is the availability of appeals to the Privy Council from former colonies where the death penalty continues to be imposed. The second is a perception that the application of general principles of procedural fairness should not be limited by archaic notions concerning the source of executive power. Whilst we understand the difficulties faced by members of the Judicial Committee in capital cases, we are reluctant to treat those decisions as necessarily offering a principled basis for departing from well-established legal propositions. Similarly, we are not persuaded that we may depart from the decision in Horwitz v Connor in the interests of promoting a consistent body of administrative law. Until the High Court holds to the contrary, the decision in Horwitz v Connor is binding upon us.

39. We wish to add one other observation. In Burt v Governor General [1992] 3 NZLR 672 at 678, the Court of Appeal considered that it would be 'inconsistent with the contemporary approach' to treat the exercise of the prerogative of mercy as 'immune from curial challenge'. We have already dealt with the "contemporary approach". However, at 681, the Court observed that the prerogative of mercy 'has become an integral element in the criminal justice system, a constitutional safeguard against mistakes'. This approach causes some concern. To treat executive intervention as an integral part of the criminal justice system would, in our view, be to depart from received views as to the separation of powers which have emerged over the last three hundred years. If executive intervention is to be seen as an integral part of the criminal justice system, rather than as an anomalous, but useful, occasional event, there is no logical reason for limiting executive participation in that system to the alleviation of the effects of occasional erroneous convictions. Legislative extension of such role might well be expected.

78. I am constrained by authority to hold that the discretion as to the exercise of the prerogative of mercy is not amenable to judicial review: Horwitz v Connor. I am not, I think, prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review.

79. I think therefore I am entitled to inquire into whether the decision-maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.

80. When it appears that the decision-maker has failed to accord an applicant natural justice as dictated by the Act which empowers the decision or by the law, the decision-maker has not acted to exercise the prerogative of mercy. There can be no mercy where the decision-maker does not act fairly. That does not mean that the decision itself is subject to review. Indeed, as the law stands, it is not. However, the applicant's complaint is related to the process. I think that he is entitled to have his complaint considered by the Court.

41. Notwithstanding his Honour's conclusion that the exercise of the prerogative of mercy is not reviewable, his Honour considered that he could proceed to consider whether or not the Executive had conducted itself in accordance with law in reaching the decision not to exercise such power, particularly in so far as concerned procedural fairness. The observations made by Lord Diplock in de Freitas suggest that the traditional view is that there is no obligation to extend procedural fairness to an applicant for exercise of the prerogative of mercy. Review of the kind contemplated in s 34B of the Supreme Court Act is not generally "on the merits". Any relevant error will usually be as to jurisdiction or in the process leading to the decision. Given the restrictive view of judicial review which prevailed at the time, it is unlikely that in Horwitz v Connor, Griffith CJ meant simply to exclude merits review.

42. There are, therefore, three potentially difficult issues in these proceedings, namely:

•

the availability of judicial review in connection with any exercise of the prerogative of mercy;

•

whether, in exercising the prerogative, the Executive is in the same position as is the Crown; and

•

whether s 34B of the Supreme Court Act authorises review of Executive decisions pursuant to s 37 of the Self-Government Act.

43. Given that the appellant is unrepresented, these proceedings do not offer a suitable vehicle for resolution of such questions, particularly in light of the clear decision in Horwitz v Connor. However, in light of the conclusion we have reached concerning the "merits" of the appellant's claim of bias or apprehended bias, it is not necessary that we do so. We turn now to that aspect of the case.

44. The decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507 offers guidance in this regard. That case concerned statements made by a minister in advance of a decision to be taken by him pursuant to statute. At [78], Gleeson CJ and Gummow J said:

First, both French J and Cooper J evaluated the statements and conduct of the Minister in the light of his political functions and responsibilities. This is a matter of importance. In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance. French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was "an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which ... is a matter of continuing public interest and debate."

102. ... Lawyers usually equate "bias" with a departure from the standard of even-handed justice which the law requires from those who occupy judicial, or quasi-judicial office. The Minister is in a different position. The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability. The power given by s 502 requires the Minister to consider the national interest. As Brennan J observed in South Australia v O'Shea ...: "The public interest in this context is a matter of political responsibility." ... As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

103. In CREEDNZ Inc v Governor-General Cooke J, in the context of a claim that in advising on an Order in Council relating to a development proposal Ministers had been in breach of the requirements of natural justice, said:

"The references in the amended statement of claim to a real probability or suspicion of predetermination or bias are beside the point in relation to a decision of this nature at this governmental level. Projects of the kind for which the National Development Act 1979 (NZ) is intended, whether Government works or private works, are likely to be many months in evolution. They must attract considerable public interest. It would be naïve to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views on the desirability of such projects until the stage of advising on an Order in Council."

104 There was a measure of artificiality about categorising the complaint against the Minister as bias. There is an even greater measure of artificiality about treating the rules of natural justice, and the legislation, as requiring the Minister, in exercising his powers under ss 501 and 502, to avoid doing or saying anything that would create an appearance of a kind which, in the case of a judge, could lead to an apprehension the subject of the apprehended bias rule.

105 The Minister was obliged to give genuine consideration to the issues ... and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.

46. The particular statutory context of the relevant decision in Jia in no way affects the relevance of the above propositions to the present situation.

47. In the present case the appellant's allegation of bias appears to be based upon an allegation of pre-judgment. In Jia at [72] Gleeson CJ and Gummow J identified the test for actual bias in such a case as whether the person in question had a state of mind 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.' Their Honours added that:

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

48. As to apprehended bias, their Honours' view as to the test appeared at [104] and [105] which are set out above.

49. The appellant's case focuses primarily upon the statement made in the press release of 10 October 2005, the comment made on television on 11 October 2005 and the press release dated 14 February 2006. For present purposes we assume that each of these statements was made prior to the actual decision to take no further action which, we infer, occurred between 14 and 22 February 2006. In considering those statements it is important to keep in mind the fact that s 475 contemplated the Executive acting upon a report by a judge. The question of the appellant's fitness to plead throughout his trial, and the way with which that matter was dealt at the trial, were matters well within the expertise of an experienced trial judge assisted by appropriate expert evidence where necessary. Those issues were probably not within the expertise and experience of members of the Executive. Thus, although the Executive was not obliged to act upon such recommendations as Miles CJ chose to make, it is by no means surprising that Mr Stanhope, as a member of the Executive, should have treated the report and, in particular, the recommendations as being of considerable importance. Indeed, any other approach would have been irresponsible.

50. There can be little doubt that the murder of the Assistant Police Commissioner was a matter of great importance and public interest. In communicating the outcome of the report to the public, Mr Stanhope was discharging his duties as Chief Minister and Attorney General. It was also likely that he would have been expected to lead any discussions concerning the report amongst the members of the Executive.

51. Concerning the press release of 10 October 2005, the appellant's complaint may focus on the word "welcomed". Perhaps it might suggest that Mr Stanhope would not have been so welcoming of a report which identified substantial shortcomings in the process which had led to the conviction. However such an approach would read too much into a single word. It is relatively clear that Mr Stanhope was expressing the view that the appellant had enjoyed every opportunity to raise his complaints, and that Miles CJ had comprehensively and thoroughly analysed the issues. The statement that Mr Stanhope considered the matter 'put to rest' may have been understood by the appellant and others as suggesting that Mr Stanhope intended to act upon the recommendation that no further action be taken, and that the Executive would agree. However we see no reason for him to have refrained from expressing such an opinion at that time, given that there would be no further evidence or submissions before the decision was taken.

52. The appellant submitted that Mr Stanhope effectively precluded the possibility that his Executive colleagues might persuade him to a different point of view. However that argument depends upon assumptions as to the way in which the Executive operated, or was likely to operate, in connection with this matter. It also assumes that there had been no previous discussions at Executive meetings, perhaps based upon reports by officials as to the proceedings before Miles CJ and the magistrate, or informal discussions with other members of the Executive individually. The appellant submitted that Mr Stanhope could not have read the report prior to his comments on 10 October 2005, but we see no justification for that assertion.

53. It was inevitable that, prior to any meeting of the Executive to consider disposing of the matter, individual members would have formed views as to the appropriate action to be taken. No doubt Mr Stanhope's view was firmly held, but it could hardly be characterized as a pre-judgment of the issue, given the stage which the matter had reached. In any event, there is no reason to believe that he could not have been persuaded to a contrary view, based on moral or political considerations. It may be that Mr Stanhope pre-empted the decision of the Executive, but that is not relevant for present purposes, and it is not an area into which we would venture.

54. In the television interview of 11 October 2005 Mr Stanhope expressed views which perhaps reflected upon the appellant's persistence in seeking to demonstrate his innocence. He again expressed the view that the matter was at an end, and that the appellant would remain in prison. For the reasons which we have given we see nothing about such comments which could suggest pre-judgment on the part of Mr Stanhope. Similar comments apply to the press release of 14 February 2006.

55. We adopt the language of Gleeson CJ and Gummow J in Jia at [104] in identifying a measure of artificiality in describing Mr Stanhope's conduct as demonstrating bias.

56. We also see no basis for any apprehension of bias. A judge would be exposed to the charge of apprehended bias if:

... a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. [See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].]

57. In Jia at [104] and [105] (set out above) Gleeson CJ and Gummow J said that a minister is not obliged to avoid doing or saying anything which would create such an apprehension. Kirby J took a quite different view, and there seems to be no clear statement in the reasons of either Hayne J or Callinan J which would suggest unequivocal support for the view expressed by Gleeson CJ and Gummow J at [104] and [105]. Nonetheless, Jia is authority for the proposition that in considering claims of bias or apprehended bias, it is necessary to take account of the different responsibilities of political and judicial decision-makers, and of the different systems and circumstances in which members of each group discharge those responsibilities.

58. We do not accept that a reasonable lay person would apprehend pre-judgment by Mr Stanhope. Such a person would conclude that he had formed an opinion as to the matter, but would recognize that he was entitled to have done so. That did not exclude the possibility that a different decision might emerge from a later meeting of the Executive, however such decision may have been reached.

59. No case of apprehended bias has been demonstrated.

60. Following the completion of the hearing of this appeal and associated matters, the appellant wrote to the Court asserting that a member of the Court should disqualify himself from continuing in the matter because of apprehended bias. This matter has been dealt with in the reasons for judgment prepared in connection with ACTCA 14/2006. It is not necessary to say anything more about it.

61. We order that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

I certify that the preceding numbered paragraphs two (2) to sixty-one (61) are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone and Dowsett.

Counsel for the Respondent: Mr S J Gageler SC, Mr D J C Mossop

Solicitor for the Respondent: ACT Government Solicitor

Decisions (Judicial Review) Act 1977

Capital Territory (Self Government) Act 1988

Decisions (Judicial Review) Act 1989

Capital Territory (Self-Government) Act 1988

At a glance

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