Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 | Case summary

Judgment 1BATHURST CJ: I agree with the orders proposed by Basten JA for the reasons given by his Honour. 2I also agree with the additional reasons of Beech-Jones J. 3BEAZLEY P: I have had the opportunity of reading in draft the reasons of Basten JA and the additional comments of Price J and Beech-Jones J. I agree with the declaration proposed by Basten JA. 4BASTEN JA: In 2009 Frank Sinkovich (the applicant) was convicted following a trial of two offences relating to the supply of methylamphetamine. The more serious offence (supply a commercial quantity of methylamphetamine) carried a standard non-parole period of 10 years. In November 2009 he was sentenced to imprisonment for 14 years, with a 10 year non-parole period. He appealed against his sentence but, on 15 April 2011, his appeal was dismissed: Sinkovich v R [2011] NSWCCA 90. 5In imposing sentence, the trial judge followed the guidance of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; 60 NSWLR 168 in relation to sentencing for an offence in relation to which a standard non-parole period applied, under Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, on 5 October 2011, some six months after the Court of Criminal Appeal dismissed his appeal, the High Court delivered judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, holding that the guidance given in Way was erroneous. 6Since the judgment in Muldrock, there have been a significant number of cases challenging the approach of sentencing judges who had (correctly at the time) followed the guidance of Way, which tended to result in higher sentences than would application of the principles laid down in Muldrock. In some cases, such challenges could be dealt with in the ordinary course of an appeal against sentence, within time, under the Criminal Appeal Act 1912 (NSW), s 5. Other cases required an extension of time in which to seek leave to appeal. A third category of cases involved offenders who had already exercised their rights of appeal against sentence prior to the judgment of the High Court in Muldrock. 7The applicant falls into the third category. Having exercised his right to appeal against sentence (whether or not on the ground now raised) he had no further right of appeal: Grierson v The King [1938] HCA 45; 60 CLR 431, applied in Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [7] and Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [24]. He was not, however, precluded from making an application for an inquiry into his sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). On 10 July 2013 the applicant filed an application in the Supreme Court. (The reasons for the lapse of time in taking that step were set out in an affidavit of Ms Schneider, the solicitor in charge of the Indictable Appeals Unit of Legal Aid NSW.) 8The application was considered by Latham J. On 17 September 2013 she refused the application, giving reasons for her decision: Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342. Those reasons, being publicly available, need not be recounted here. It is sufficient to refer to two particular passages. First, having set out the basis on which the appeal was dismissed by the Court of Criminal Appeal, Latham J stated at [9]: "It 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'." 9Then, having reviewed the history of the legislation and such authorities as have considered its operation, Latham J concluded that the construction of the phrase "mitigating circumstances", in s 79(2) of the Appeal and Review Act, could not "be strained to accommodate errors of law": at [23]. At [33] she noted: "I 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." 10The final conclusion in Latham J's reasoning was as follows, at [38]: "I 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." 11Before leaving the reasons, it is necessary to note what was referred to as "a change in the law". There had been no change in the relevant legal principles, the statutory provisions with respect to standard non-parole periods having remained the same at all relevant times. What had changed was the identification by the High Court of a misapprehension as to the proper construction of the statute by the Court of Criminal Appeal which, in turn, had been followed (correctly in terms of precedent) by sentencing judges and in later appellate judgments, until the error was identified. The significance of this change will be addressed further below. Application for review by this Court 12It will be necessary to explain the legislative scheme of Part 7 of the Appeal and Review Act in detail: it is sufficient at this stage to note that the consideration of an application for an inquiry into a sentence, as undertaken by Latham J, was not an exercise of judicial power. There was no appeal from her decision. However, the applicant said that he had a right to invoke the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW) and, in the event that he could establish a relevant legal error in the determination made by Latham J, could invoke appropriate relief, either by an order quashing the refusal, or an order requiring Latham J to determine his application according to law. In the alternative, he sought declaratory relief in the event that other orders were deemed to be inappropriate: Supreme Court Act, s 75. He did not suggest that the grounds differed according to the nature of the relief. 13It is not insignificant in relation to the available relief that the second respondent to the application was named as Justice Latham. In relation to judicial review proceedings the decision-maker is properly named as a party who must be bound by the judgment of the Court. However, unless the decision-maker acts as an individual, the responsible body should be named and not the individual. That principle applies to office-holders generally and not only courts and tribunals: Brown v Rezitis [1970] HCA 56; 127 CLR 157 at 169 (Barwick CJ); Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724-725 (Moffitt P, Hope and Samuels JJA agreeing); Re Ruddock; Ex parte Reyes [2000] HCA 66; 75 ALJR 465 at [25]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [43] (McHugh J); Police Integrity Commission v Shaw [2006] NSWCA 165; 66 NSWLR 446 at [43]. An application for an inquiry under Pt 7 of the Appeal and Review Act is, as appears below, made "to the Supreme Court" and any direction or referral made upon considering the application is also made "by the Supreme Court": ss 78(1) and 79(1) set out at [15] below. It is therefore appropriate that the second respondent not be named as an individual judge, but as the Supreme Court of New South Wales. The statutory provisions 14Part 7 of the Appeal and Review Act is headed "Review of convictions and sentences". The two operative Divisions for present purposes are those which deal with the commencement of claims made for review or inquiry of a conviction or sentence. Division 2 is headed "Petitions to Governor" and provides a mechanism for invoking the exercise of "the Governor's pardoning power": s 76. It may be invoked by a "petition for a review of a conviction or sentence", pursuant to s 76. That was not the procedure adopted in the present case. 15Division 3 is headed "Applications to Supreme Court". It was this procedure which was adopted by the applicant. The key provisions are as follows: 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) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. ... 16Division 4 provides for the conduct of an inquiry where one has been directed, relevantly for present purposes, under s 79(1)(a). Division 5 deals with the procedure and powers of the Court of Criminal Appeal, in the event that the case is referred to the Court of Criminal Appeal. This may occur directly upon considering an application, pursuant to s 79(1)(b) or following completion of an inquiry, pursuant to s 82(2). 17Part 7 also deals with applications to the "DNA Review Panel", under Division 6, but nothing turns on these provisions for present purposes. Indeed, little reference was made to the powers of the Court of Criminal Appeal under Pt 7. It is sufficient for present purposes to note that where a case is referred to the Court of Criminal Appeal under s 79(1)(b) the Court is required to deal with the case "in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912": s 86. Issues 18The primary issue in the present proceeding turned on the scope of an application for an inquiry permitted under Pt 7. The submissions for the applicant focused on the absence of limitation on that which could be applied for, beyond being "an inquiry into a conviction or sentence", as provided in s 78(1). In support of that submission, the applicant drew attention to Div 1, headed "Preliminary" which included the following provision: 74 Definitions ... (2) In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence. 19For present purposes, the operation of this provision can be simplified by putting to one side references to "a review", as that is the language adopted with respect to a petition to the Governor. The present application, made under s 78, was for an inquiry. Accordingly, in its terms, s 74(2) provides an expansive definition by which any reference to "an inquiry into a conviction or sentence" includes a reference to "an inquiry into any aspect of the proceedings giving rise to the conviction or sentence". Those words, the applicant submitted, are inconsistent with any implied limitation on the scope of the matters for inquiry. 20The focus of the submissions for the Attorney, for whom the Crown Advocate appeared, and who sought to uphold the reasoning of Latham J, had three elements. First, it was submitted that s 74(2) was not properly understood as a "definition", but even if it were appropriate to so treat it, the term "inquiry" did not appear in the critical gateway provision, namely s 79(2). 21The second aspect of the Attorney's approach, which was linked to the first, was to emphasise the language of s 79(2), and particularly the requirement for "a doubt or question as to ... any mitigating circumstances in the case". That language, it was submitted, should be understood in its historical context, which, in this State, dated back to 1883. That language should govern the scope of the provision, absent any indication in the legislative history that s 74(2), first introduced in 1996, was intended to broaden the circumstances in which an inquiry could be held. 22The third aspect of the Attorney's submissions related to what was described as "the principle of finality". That principle, it was submitted, was reflected in the concept of "merger", by which any liability of the offender under the criminal law merged into the final judgment or order of the court, being the conviction of and sentence for the offence as charged. Whilst it was acknowledged that Pt 7 itself constituted a qualification of the principle of finality, the Attorney submitted that the qualification should not be permitted to expand beyond the stated parameters. Operation of the statutory scheme 23In order to address the respective submissions, it is preferable to start with the current statutory language. That is because the earliest statutory predecessor to Pt 7 was s 383 of the Criminal Law Amendment Act 1883 (NSW), which pre-dated by almost three decades the first general right of appeal in criminal matters in this State. In these circumstances, precise continuity of purpose or approach cannot be assumed. 24It is convenient to start with the language of s 79(2), upon which the Crown Advocate placed significant weight. An application to the Supreme Court may have one of three outcomes: (a) it may result in a direction for the conduct of an inquiry - s 79(1)(a); (b) the referral of the whole case to the Court of Criminal Appeal (without an inquiry) - s 79(1)(b) or (c) refusal to take either step (a) or (b). 25The direction of an inquiry or referral of the case to the Court of Criminal Appeal are actions available under s 79(1) which "may only be taken if" the gateway in sub-s (2) is passed. That is language of confinement: there is no power in the court to take action under s 79(1) unless a specified condition is fulfilled. 26The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it "appears" to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. (That does not, of course, mean that the judge's decision is for that reason unreviewable, although the grounds and basis of review involve questions which will be addressed below.) 27The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a "doubt or question" as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed). 28The second element, "any mitigating circumstances", is not of the same kind as "guilt". Reading the words in their ordinary meaning, the Crown Advocate submitted that there must be circumstances, that is events or happenings, which mitigated the culpability of the accused. She conceded that such circumstances could include the state of mind of the accused or a relevant mental illness or disability of the accused, which could affect both liability for the offence and moral culpability, as relevant to sentencing for the offence. Dealing only with the question of sentence, the precise operation of the phrase is obscure. The offender would hardly complain of mitigating circumstances which had been taken into account, although no doubt the offender would have grounds for complaint if significant mitigating circumstances were not taken into account and might wish to raise factual matters which were not known to the sentencing judge. 29It would seem curious if no inquiry could be held where the sentencing judge had, mistakenly, sentenced on the basis of an extensive criminal record which related to another person. Although it might be possible to say that the absence of such a criminal record was a "mitigating circumstance", that would be an artificial way of describing the error which had occurred. Similarly, the sentencing judge might have sentenced on the basis of a misapprehension as to the maximum penalty for the offence believing, for example, that it was significantly higher than that in fact prescribed. That such mistakes occur is undoubted: if the error were to be disclosed only after an appeal had been dismissed, it would seem curious that the offender could have no right of relief. The section does not limit the relationship of the doubt or question to its subject matter, and must allow for a range of connections. 30As already noted, the three elements in s 79(2) are not self-contained. In Eastman, Heydon J noted that reference to a doubt or question about "any portion of the evidence" gave a significant clue as to the breadth of the inquiry with respect to guilt, suggesting that the process of finding guilt was covered: at [135]. One of the points of significance raised by the Director in Eastman was that the equivalent provision discussed in that case referred, as does s 79(2), to "guilt" rather than "conviction". Section 79(2) does not refer to sentence at all, although it is beyond doubt that there may be an inquiry into a sentence, because that term is expressly used in s 78(1). The looseness of the fit of the language as between ss 78(1) and 79(2) militates against reliance on the precise terms of s 79(2) to impose restrictions on the scope of the matters which an applicant may seek to raise in applying for an inquiry. 31Further, the submission of the Crown Advocate that s 74(2) has no direct application to s 79(2) cannot be accepted. Although the word "inquiry" does not appear in the latter provision, the reference to "[a]ction under subsection (1)" refers, relevantly, to a direction that "an inquiry be conducted ... into the ... sentence". That is the precise phrase which is said by s 74(2) to extend to "any aspect of the proceedings giving rise to the ... sentence". Whether that constitutes a "definition" (as described in the heading of the section, which is not part of the section - Interpretation Act 1987 (NSW), s 35) is immaterial: if s 74(2) is to be given effect according to its terms, it must be possible for the Supreme Court to direct an inquiry into any aspect of the proceedings giving rise to the sentence. In accordance with Eastman, that would include a procedural error. Any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed, may found a doubt or question as to a mitigating circumstance; that is, the failure to sentence the prisoner on a basis which would have led to a less severe sentence than that imposed. 32If that reasoning is correct, there is no basis in the language to exclude errors of law: indeed, it will often be easier to identify a miscarriage of justice which has resulted from an error of law than one resulting from a mistake as to some matter of fact. Statutory history 33The parties placed some weight in the course of submissions on the history of the provisions which are now found in Pt 7 of the Appeal and Review Act. Much of that history was set out by Heydon J in Eastman and has recently been referred to by this Court in Patsalis v Attorney General for New South Wales [2013] NSWCA 343. Without disrespect to the diligence of counsel and the comprehensive nature of the written submissions setting out the legislative history, it is sufficient for present purposes to refer only to those aspects which directly bear upon the present issues. 34The first aspect of the history, as has already been noted, was that the original sections of the Criminal Law Amendment Act 1883 pre-dated any statutory right of appeal with respect to convictions and sentences for criminal offences. The quite limited opportunity for correction of error by judicial process was referred to by Heydon J in Eastman at [70]. Otherwise, apparent miscarriages of justice could only be remedied by the exercise by the executive of a power to pardon an offender. That situation was widely perceived to be unsatisfactory, particularly in the absence of any clear procedure for invoking the power, any statement of grounds upon which the power should be exercised and given the inadequacy of the consequences. Thus, it was readily appreciated that for the Governor to pardon a person who was believed not to be guilty of any offence was incoherent. 35The relevance of the 1883 Amendment Act for present purposes is twofold. First, the power to conduct an inquiry and thus to summon and examine persons on oath was contingent upon satisfaction as to "any doubt or question ... as to his guilt or any mitigating circumstance in the case or any portion of the evidence therein", being language reflected in s 79(2). Secondly, it is fair to say that the focus of the provision was on potential factual error. However, that was explained by the nature of the reform. The problem identified in the First Report of the Commissioners Inquiring into the State of the Statute Law of New South Wales (1871) was that no mechanism was available for investigating factual allegations. Thus, the Governor had no power either directly or through a justice of the peace to summon witnesses and examine them on oath. To provide such a power was the primary purpose of s 383. 36The second aspect of the history was that the establishment of the Court of Criminal Appeal in 1912 provided a further mechanism for inquiry and investigation, independent of the pardoning power of the Governor and independent of the right of appeal granted by the Criminal Appeal Act itself, set out in s 26. 37The third aspect of the early history which gave some limited support for the view that s 383 was directed to matters of fact only was that there existed in the Crimes Act, as enacted in 1900, provision for reserving questions of law (ss 428 and 470) and for writs of error for reversal of judgments on conviction (s 471). In addition, s 383 had found its way into the Crimes Act as s 475 and remained there, after the other provisions were removed with the enactment of the Criminal Appeal Act. 38The existence of these provisions supported the conclusion in Grierson that the right of appeal was confined. Thus, Rich J stated at 434: "In making the remedies provided by sec 475 of the Crimes Act 1900 and sec 26 of the Criminal Appeal Act of 1912 available to a prisoner after conviction the legislature has, I think, recognized that the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened." 39Dixon J also noted the availability of the powers conferred by s 475 and s 26, which remained exercisable at the instance of the executive, notwithstanding the dismissal of an appeal: p 437 (McTiernan J agreeing with Rich and Dixon JJ). 40Section 26 of the Criminal Appeal Act and s 475 of the Crimes Act remained broadly in the same terms until 1993 when they were incorporated into a new Pt 13A of the Crimes Act, effective from 14 November 1993. For reasons which need not be pursued, s 474D, as enacted in 1993, permitted an application for an inquiry "into a conviction" to be made to the Supreme Court. Reference to a conviction may have been thought sufficient to cover conviction and sentence. However, it was construed as being limited to conviction: Application of Shepherd (unrep, Barr J, 13 September 1996). Immediately thereafter, the relevant provisions in Pt 13A were amended to include reference to "conviction or sentence": Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), effective from 27 September 1996. At that time, the structure of the provisions had settled into the form now found in Pt 7 of the Appeal and Review Act. One additional amendment made in 1996 introduced (as s 474A(3)) a provision in identical terms to s 74(2) set out above. 41On one view, that provision was expansive of the scope of Pt 13A in 1996. That the 1996 amendments were intended to be expansive, so as to include inquiries into sentences, is not to be doubted: the Crown Advocate's submission was that they were not otherwise intended to expand the scope of the provisions beyond that which existed prior to the omission of the reference to sentences, which occurred in 1993. However, the new definitional provision was clear in its terms. The submissions of the Crown Advocate would simply delete it from the legislative record: for that reason, the submission cannot be accepted. There is inadequate support in the legislative and historical record for any such course, were it otherwise permissible. Principle of finality 42It has been said that the principle of finality is "a core value of judicial power" (M Leeming, Authority to Decide - The Law of Jurisdiction in Australia (Federation Press, 2012) at 275) and "[a]n inseparable feature of the rule of law": Leeming at 276, quoting A Zuckerman "Finality of Litigation - Setting Aside a Final Judgment" (2008) 27 CJQ 151. However, like "the rule of law", it is a concept which usually operates at a high level of generality and gives rise to statements of principle which should be read in context. Thus, in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34] the High Court noted that, "[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.". That passage was repeated in Burrell at [15], as one of three "basic considerations" informing the conclusion that the Court of Criminal Appeal lacked power to reopen perfected judgments. 43The importance of finality should not, however, be overstated. The joint reasons in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, in considering the grounds for certiorari, noted two opposing purposes and continued, at [57]: "As Professor Sawer wrote, more than 50 years ago, the English common law courts sought to control inferior courts by 'keeping the inferior tribunal within its "jurisdiction" [which] may be equated with compelling the inferior tribunal to observe "the law", ie, what the superior tribunal considers the law to be'. Yet at the same time 'it [was] usually desired, for reasons of expediency, to give the inferior decision some degree of finality, or, as is often said, some jurisdiction to go wrong'. Those two purposes pull in opposite directions. There being this tension between them, it is unsurprising that the course of judicial decision-making in this area has not yielded principles that are always easily applied. As Sawer wrote, 'it is plain enough that the question is at bottom one of policy, not of logic'." 44Further, noting that Craig v South Australia [1995] HCA 58; 184 CLR 163 had rejected the proposition that reasons constituted part of the record of a court for the purposes of certiorari, the reasons in Kirk continued at [85]: "However, the conclusion that the record of a court does not include its reasons certainly confines the availability of certiorari. Some but not all errors of law made by a court will found the grant of relief. And the availability of certiorari is confined for the stated purpose of not providing a 'discretionary general appeal for error of law'. But the need for and the desirability of effecting that purpose depend first upon there not being any other process for correction of error of law, and secondly, upon the conclusion that primacy should be given to finality rather than compelling inferior tribunals to observe the law." 45The conflict between the demands of finality and control of both judicial and executive power were identified in the colourful language which the Court adopted with respect to privative clauses, noting that "[t]o deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint": at [99]. 46Thus, to talk of the principle of finality as "an inseparable feature of the rule of law", without referring to other principles which are also features of the rule of law may create a distorted picture. On the other hand, the supervisory jurisdiction has not been treated as a basis for intervening in the criminal jurisdiction where appeal rights exist, nor indeed, before 1912. In the present case, the Crown Advocate relied upon the principle of finality, not as some freestanding proposition which is basic to the administration of justice, but as a principle which affects the exercise of statutory interpretation. Nevertheless, its function, so far as the power to inquire is concerned, is limited. Although appeals are, on one view, an affront to the principle of finality, rights of appeal are not narrowly confined. Nor is the supervisory power confined within strict limits: rather the contrary. The history of judicial responses to privative clauses (which are the legislature's attempts to enact finality) is one of antipathy. Part 7 is inherently an exception to the principle of finality. Whether the gateway to the holding of an inquiry should be narrowly confined is a question best answered by reference to the statutory language and purpose, rather than some abstract principle, the application of which requires reconciliation with other conflicting principles. 47The administration of criminal justice is an area where Lord Atkins' aphorism, "finality is a good thing but justice is a better", has ready application: Ras Behari Lal v King-Emperor (1933) 50 TLR 1 at 2, identified as a possibly false dichotomy by Mason P in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 647, but cited with approval by Bokhary PJ (albeit in dissent) in Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478 at [29]. As between the State and an offender against the criminal laws, a high value is placed on fair procedure and correct outcome. At least in this area of the law, there can be no presumption against derogation from a principle of finality by a statutory scheme which has that as its primary purpose: cf Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290 at 298 (McHugh J). The language of s 74(2) must be given full effect. 48The Crown Advocate further invited consideration of the relationship between, on the one hand, the circumstances in which an application for an extension of time to appeal will be granted and, on the other, the consideration of an application for an inquiry under Pt 7. In Montero v R [2013] NSWCCA 214, Leeming JA referred to authorities which recognise that "exceptional" circumstances must be shown to warrant departure from the principle of finality: at [6]. The latest authority to which he referred, Chau Cheuk Yiu in the Hong Kong Court of Final Appeal, was not a criminal case, but involved a challenge to disciplinary proceedings which had led to a police officer being compulsorily retired (without pension entitlements) without being accorded a proper hearing. His application for review was belated because of doubt, ultimately resolved favourably to the interests of individual officers, of the application of procedural fairness requirements in the Hong Kong Bill of Rights. Nevertheless, it is true that both the minority judgment of Bokhary PJ and the majority judgment of Chan PJ drew upon applications for extension of time with respect to criminal appeals. 49The language adopted in such cases varies from case to case. A strict view was taken in England in R v Mitchell [1977] 1 WLR 753; 65 Cr App R 185, treating extensions as available only in "a very rare case". In R v Hawkins [1997] 1 Cr App R 234 Lord Bingham CJ considered that leave should be granted if it appeared that otherwise "any substantial injustice" would be done. In Alofa v Department of Labour [1980] 1 NZLR 139, Lord Cooke referred to the need for "special circumstances". 50The Crown Advocate argued for a similar approach to be taken in respect of applications under Pt 7, otherwise the treatment of those who had not yet appealed but needed an extension of time would give rise to anomalous results, when compared with those who had appealed, unsuccessfully, and were required to invoke the extraordinary powers under Pt 7. 51A strict test of exceptional circumstances, or the need to avoid substantial injustice, applied to applications for an extension of time within which to seek leave to appeal, may well lead to different results, as compared with the language of Pt 7, requiring a judge to be satisfied that there is "a doubt or question" in relation to a conviction or sentence. However, the possibility of anomalous outcomes does not permit this Court to rewrite the language of s 79(2). If anomalous outcomes are to be avoided, that must be the result of the exercise of the discretionary power, and cannot be achieved by denying the existence of the power. 52History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible. 53The fact that the gateway to an inquiry is now by seeking to satisfy a Supreme Court judge of a doubt or question as to a conviction or sentence reflects both the importance placed upon the procedure and an appropriate mechanism to ensure that it is exercised responsibly and, no doubt, sparingly. However, this mechanism militates against an unduly narrow construction of the statutory gateway. 54Further, the fact that an appeal is available as of right in respect of an error of law in respect of a conviction, but only by leave as to a matter of fact, contradicts the view that a post-appeal inquiry should be limited to questions of fact: see Criminal Appeal Act, s 5(1)(a). The identification of error with respect to points of law is a function peculiarly suited to a superior court judge. The scheme by which the gateway function is conferred on the Supreme Court, rather than a justice of the peace or any other person, is inconsistent with an intention to exclude errors of law. 55Latham J considered herself bound to reject the applicant's application only by adopting a constrained view of her function which was not justified in law. A discretionary power 56As explained above, the terms of s 79(2) constitute a condition precedent, or gateway, to the discretionary power conferred by s 79(1) on a judge of the Court. Because an unduly restrictive approach was taken to the language of s 79(2), the judge did not reach the exercise of discretion and, accordingly, no issue as to the factors which should properly be taken into account in exercising the discretionary power arises in this proceeding. However, lest it be thought that the principle of finality has limited operation in the underlying circumstances of the case, it is desirable to refer to analogous questions which have arisen in the United Kingdom. 57In Cadder v Her Majesty's Advocate [2010] UKSC 43; [2010] 1 WLR 2601, the UK Supreme Court endorsed the following passage from the judgment of Murray CJ in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, which may be found in the judgment of Lord Rodger in Cadder at [101]: "36. Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position. 37. Only a narrow approach based on absolute and abstract formalism could suggest that all previous cases should be capable of being reopened or relitigated (even if subject to a statute of limitations). If that absolute formalism was applied to the criminal law it would in principle suggest that every final verdict of a trial or decision of a court of appeal should be set aside or, where possible, retried in the light of subsequent decisions where such subsequent decision could be claimed to provide a potential advantage to a party in such a retrial. In principle both acquittals and convictions could be open to retrial. But one has only to pose the question to see the answer. No one has ever suggested that every time there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have had some bearing on previous and finally decided cases, civil or criminal, that such cases be reopened or the decisions set aside. 38. It has not been suggested because no legal system comprehends such an absolute or complete retroactive effect of judicial decisions. To do so would render a legal system uncertain, incoherent and dysfunctional. Such consequences would cause widespread injustices." 58Lord Rodger continued at [103]: "The only way, therefore, in which the Court's decision in this case could have any effect on completed cases would be, indirectly, through the mechanism of such a reference by the Review Commission. It is, however, no part of this Court's function, in an appeal to which the Commission is not a party, to comment on the approach that it should adopt in handling any application for such a reference. It is for the Commission to consider where the public interest lies if an application is made to it for a reference to the High Court in a case that was properly conducted according to the law as understood at the time. A fortiori, it is no part of this Court's function on this occasion to comment on the approach to be adopted by the appeal court if the Commission should make a reference in such a case. That would be a matter for the appeal court to determine in the light of the arguments presented to it." 59It is desirable to explain the reference to the Review Commission in this extract. The Criminal Cases Review Commission, was established by the Criminal Appeal Act 1995 (UK), s 8. The Commission in effect replaced the Home Secretary as the body responsible for dealing with possible miscarriages of justice. The Commission was empowered by s 9 "at any time" to refer a conviction or a sentence to the Court of Appeal, where it would be treated for all purposes as an appeal by the person under the Criminal Appeal Act 1968 (UK). The conditions for exercise of the power to refer a case are set out in s 13 of the 1995 Act, which provides: 13(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless - (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b) the Commission so consider - (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it. 60In 2007, the Court of Appeal became concerned that the approach of the Commission with respect to what were described as "change of law cases" did not take account of the restricted view adopted by the Court with respect to cases requiring an extension of time. The concern arose because, once a referral was made, that gateway would not arise as the case was required to be dealt with as an appeal: see R v Cottrell & Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P, Golding and Beatson JJ) at [42]-[58]. The Court noted at [46]: "... it has been for very many years, and still is, as Hughes LJ described it in R v Ramzan [2007] 1 CAR 150, the 'very well established practice of this court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant.' In short, the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred." 61The reasoning in this regard concluded at [58] with the following statement: "In our judgment, in these cases, it is not open to the Commission lawfully to apply a policy based on the conclusion of the divisional court that it was 'under no obligation to have regard to, still less to implement' the practice of the court. The practice must be addressed and evaluated in every case. Just as the court will not normally extend time, a conviction should not normally be referred on the basis of a change of law. We repeat paragraph 46 of this judgment. In the final analysis, however, provided the Commission addresses and gives proper weight to the law and practice of the court, it must exercise its own independent and fact-specific judgment whether to refer a case." 62It is not necessary to consider in this case to what extent those remarks would apply to the consideration given by a judge of the Supreme Court under s 79(1)(b), or to the somewhat different process available under paragraph (a). It may, however, be noted that the approach adopted in R v Cottrell & Fletcher remains authoritative in the UK: Mohid Jawad v The Queen [2013] EWCA Crim 644 at [29] ( Hughes LJ). Available relief 63In the event that his submissions were upheld, the applicant sought both mandatory and declaratory orders. The mandatory orders included an order quashing the decision refusing the application and an order directing Latham J to perform her obligation to determine the applicant's application according to law. 64The declaratory orders sought were twofold. First, a declaration was sought that "the adverse consequences flowing to the applicant from the application of sentencing principles found to be wrong in [Muldrock] are capable of raising a doubt or question within the meaning of s 79(2) of the [Appeal and Review Act]". A further declaration was sought that "the material before this Court as to the applicant's state of mind concerning his grievance as an offender sentenced in an adverse way according to principles found to be wrong in Muldrock is capable of raising a doubt or question within the meaning of s 79(2) of the [Appeal and Review Act]". Reliance on the subjective beliefs of the offender was misplaced: they are neither necessary nor sufficient to raise a doubt or question. The matter appears to have been presented in that way on the basis that such evidence may constitute part of the "available material", which might cause a judge "for want of a better word 'unease' in allowing a conviction to stand": Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48, referring to language used by Nagle CJ at CL in an earlier matter (unreported) involving the same offender. 65This language does not assist. There is no purpose served by adopting other words than the statutory language of "doubt or question". The "material" on which the judge may base an opinion is not improved or added to by a document setting out the subjective beliefs of the applicant. Nor is it necessary for the applicant to demonstrate subjective grievance, to establish an appropriate basis for seeking an inquiry. The form of the second proposed declaration is inapt. 66Whether the rules regarding the writ of certiorari would have permitted its issue in the circumstances of the present case may be doubted. The refusal of the application for an inquiry did not preclude a further application, although, if a further application were made on the same grounds, it might well be refused simply on the basis that the complaint had previously been dealt with, pursuant to s 79(3)(a)(ii), which reflects a general principle which would operate absent any statutory basis. As explained in Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at 12.14 (pp 795-798), there is uncertainty as to the type of interest which might be protected by certiorari. There is a further question as to whether the limits as to the availability of the writ confine the power of this Court to make a quashing order pursuant to powers conferred by s 69 and, perhaps, s 23 of the Supreme Court Act. 67There is also a question whether a quashing order is either necessary or appropriate in circumstances where the Court would not grant mandamus. As noted in Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319 at [100], "the unavailability of mandamus entails that there is no utility in granting certiorari to quash the recommendation". This statement, and remarks to similar effect in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 at [48], were made in relation to an application which the Minister had no obligation to consider and in respect of relief sought under s 75(v) of the Constitution, where certiorari is granted only where necessary to give effect to relief available under that section. Again, the jurisdiction exercised by this Court differs from that conferred on the High Court under s 75(v), both in its substance and its form. 68Nevertheless, as senior counsel for the applicant was inclined to concede, there is no need to grant a mandatory order in the present case. First, if it were granted, it would not be directed to a particular judge of the Court. Secondly, the suggestion that the Court of Appeal (which is part of the Supreme Court) would grant an order directed to "the Supreme Court", ordering it to take particular steps is such as to cast doubt on the availability of the remedy. Indeed, such a course would be inconsistent with the historical understanding as to the availability of the writ, described by Brennan CJ in Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; 188 CLR 595 at 604: "The writ of mandamus is a supervisory remedy, issuing to an officer subordinate to the jurisdiction of a superior court having jurisdiction to issue the writ, commanding the performance of a public duty which, in the opinion of the superior court, the officer has wrongly refused to perform. A Judge of the Industrial Relations Court is not an officer subordinate to the jurisdiction of that Court. Nor could that Court form an opinion that a Judge had wrongly failed to exercise its jurisdiction when the decision of that Judge had the effect of a Court decision that there was no such jurisdiction to exercise." 69To similar effect, in Kirk at [98], the joint reasons stated: "The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court." 70From that proposition it may be assumed that no constitutional constraint would deny the power of a State Parliament to regulate or limit the scope of relief available in its Supreme Court, with respect to judges of that Court. However, there may be some doubt as to the correctness of that proposition. In Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181, the High Court considered the validity of the Crimes (Criminal Organisations Control) Act 2009 (NSW), which permitted the Commissioner of Police to apply to a judge of the Supreme Court for a declaration if satisfied that members of a specified organisation associated for the purpose of (in short) engaging in serious criminal activity. The function exercised by the judge in that respect was described as "an administrative, not a judicial act": at [1] (French CJ and Kiefel J). The validity of the legislation was challenged on the basis that the conferral of such a power on a judge of the Supreme Court constituted an intrusion upon the institutional integrity of the Court and was thus invalid because it was beyond the power of the State Parliament to legislate in a manner inconsistent with Ch 3 of the Constitution. Critical to the conclusion that the Act was invalid was the removal by s 13(2) of any obligation on the judge to give reasons for his or her declaration, as explained by Hayne, Crennan, Kiefel and Bell JJ in Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; 87 ALJR 458 at [135]. 71The Act also contained a privative clause which purported to preclude any review of a declaration made under Pt 2, to be found in s 35 of the impugned legislation. (There was a right of appeal "in relation to the making of a control order" - s 24 - but it appears to have been assumed that such an appeal would not extend to the validity of the declaration, although the declaration was a precondition to the making of a control order.) French CJ and Kiefel J stated that it was "not in dispute", that the privative clause was required to be read so as not to exclude review for jurisdictional error, referring to the passage in Kirk at [98]-[99], part of which is set out above. The joint reasons of Gummow, Hayne, Crennan and Bell JJ stated at [89]: "Section 35 of the Act purports to exclude the jurisdiction of the Supreme Court in respect of judicial review of declarations made by an eligible Judge under Pt 2. The effectiveness of that exclusion is denied by the decision in Kirk v Industrial Court (NSW)." 72The decision in Kirk concerned a privative clause operating with respect to the Industrial Court, not the Supreme Court and, in particular, the exercise of judicial functions by that Court, not administrative functions. The applicant in the present case relied upon the statement in Wainohu as a basis for concluding that, although no privative clause affects Pt 7 of the Appeal and Review Act, this Court must have a constitutionally protected jurisdiction to review decisions of its own judges in the exercise of an administrative function. However, the validity of s 35 of the legislation under consideration in Wainohu was not a basis for the determination of invalidity, nor was its effect the subject of dispute. In those circumstances, it is preferable that this Court, if not required to deal with the issue, await further explication of the scope of the statements in Wainohu by the High Court. 73One further matter should be noted. In order to demonstrate the error in the approach adopted by Latham J, it was necessary for the applicant to rely upon the reasons given for the refusal of the application. The applicant submitted that those reasons demonstrated either a jurisdictional error or an error of law on the face of the record. 74If the error involved the misconstruction of legislation by a judge of the Supreme Court in the exercise of a judicial function, there is good reason to doubt that it would constitute "jurisdictional error", as it would be within the undoubted power of the judge to determine for herself the law to be applied. On that view, the allegation of jurisdictional error depended upon the characterisation of the function as administrative, or at least "not judicial", in the language of s 79(4). 75Uncertainty exists as to the basis for identifying error of law on the face of the record. In Craig, the Court held that reasons did not form part of the record of a court or tribunal, unless expressly incorporated by the decision-maker. Section 69(3) of the Supreme Court Act reversed that principle for the purpose of this Court's supervisory jurisdiction, by declaring that the record includes "the reasons expressed by the court or tribunal for its ultimate determination": s 69(4). There is a question, not addressed by the parties in their submissions, as to whether a judge exercising an administrative function (if that be the correct characterisation) constitutes a "court or tribunal", each of which usually describes a body exercising judicial, or perhaps quasi-judicial, functions. 76Given the absence of attention to any of these issues, and given the inappropriateness of an order of mandamus and the absence of need for an order setting aside or quashing the refusal of the application, it is undesirable to seek to resolve these questions. Rather, it is appropriate to make a declaration, as permitted by s 75 of the Supreme Court Act, in the terms of the first declaration proposed by the applicant, based on a finding of error of law. 77It follows from such a finding that the application made by the applicant for an inquiry under Pt 7 of the Appeal and Review Act has not yet been determined according to law. There is no reason to suppose that the Supreme Court is precluded from further consideration of the application. Although it is implicit that an application under s 78 is to be in writing (the Registrar must cause a "copy" of it to be given to the Minister) there is no form or formality involved. If it were thought to have been finally disposed of by the refusal on 17 September 2013, it could no doubt be reactivated by a letter incorporating the material already provided. Accordingly, no formal direction is required in order to ensure that the matter is determined according to law. Orders 78The parties indicated that they had an agreement as to costs and no order was required, whatever the outcome of the proceeding in this Court. 79The form of the declaration should take account of the fact that Latham J was persuaded that the sentencing judge and Court of Criminal Appeal had applied sentencing principles which should not have been applied in the light of the High Court's judgment in Muldrock: at [9]. Both courts approached the sentencing exercise on an erroneous view of the law. That was an error capable of giving rise to a doubt or question as to the correctness of the sentence imposed. The court should make a declaration in the following terms: Declare that an error of law on the part of the sentencing judge and, on appeal, the Court of Criminal Appeal, which may have caused a sentence to be imposed of greater severity than would otherwise have been the case, constitutes an aspect of the proceedings giving rise to the sentence which may form the basis of a doubt or question as to circumstances having the potential to mitigate the sentence imposed, for the purpose of considering an application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). 80PRICE J: I agree with the reasons of Basten JA and the terms of the declaration that his Honour proposes. I only wish to add a few words as to the meaning of "any mitigating circumstances" in s 79(2). In my opinion, the applicant's submission that these words mean "anything that might lessen the sentence in law" is to be accepted. The reality of the trial judge's adherence in the present case to the guidance of Way was that the applicant's subjective circumstances were given less weight than they would otherwise have been if the applicant had been sentenced in accordance with the principles in Muldrock. This is evident from the trial judge's sentencing remarks (JOS 10): "When dealing with offences after trial for which a standard non-parole period applies, there must be an appropriate relationship between that period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation". 81I also agree with the additional remarks of Beech-Jones J. 82BEECH-JONES J: I have had the advantage of reading the judgment of Basten JA in draft form. Subject to what follows I agree with his Honour. 83First, in addition to those matters discussed by Basten JA, there is in my view a further aspect of the statutory scheme created by Part 7 of the Crimes (Appeal and Review) Act 2001 that supports the applicant's argument. His Honour has extracted the relevant provisions of Division 3 (at [15]) and the relevant part of s 74(2) (at [18]). In the case of an application for review made to the Supreme Court, if the Court is satisfied of the matter set out in s 79(2) and no discretionary reason for the refusal of the application is apparent (s 79(3)), the Court can either direct an inquiry by a judicial officer or refer the "whole case" to the Court of Criminal Appeal (s 79(1)). Of course an error of law in the sentencing process is a matter that can be addressed on a referral of the "whole case" to the Court of Criminal Appeal. 84Otherwise the conduct of an inquiry ordered under s 79(1) is governed by Division 4 of Part 7. Section 82 deals with the action that is to be taken on completion of such an inquiry. It provides: "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." (emphasis added) 85There is no doubt that if, following an inquiry, a judicial officer considered that there was a reasonable basis for believing that a sentence was rendered more severe than it otherwise would have been by reason of an error of law then they would hold a "reasonable doubt as to [a] matter that may have affected the ... severity of the sentence" within the meaning of s 82(2)(b) and could refer the "matter" to the Court of Criminal Appeal. 86In my view it follows that, if the respondent's contention that an error of law in the sentencing process which affected the severity of the sentence is not capable of satisfying s 79(2) was accepted, the outcome would be counter-intuitive to say the least. Part 7 creates a statutory scheme which enables persons to apply for an inquiry into their sentence (s 78(1)), including an inquiry which concerns "any aspect of the proceedings giving rise to the ... sentence" (s 74(2)). This can include an error of law affecting the sentence. If the application is granted, the applicant may either have the whole case referred to the Court of Criminal Appeal (s 79(1)(b)) which can address any error of law affecting the sentence, or the applicant could obtain an inquiry which could also lead to a referral to the Court of Criminal because of a possible error of law affecting the sentence (s 79(1)(a) and s 82(2)(b)). Yet, according to the respondent's argument, unless there is some doubt or question as to a factual matter affecting a sentence, all these means of redressing errors of law that appear to be proffered by the statutory scheme would be frustrated because the threshold created by s 79(2) could not be overcome. 87Second, as noted by Basten JA at [11], this case does not involve a "change in the law". Instead it only concerns a sentence in respect of which there is clearly a "doubt or question" as to the sentence arising from an error of law in the sentencing process. In the ordinary course a true change in the law will only be effected by the legislature and only have prospective effect. Such a change will usually have nothing to say about whether there is a relevant doubt or question as to the severity of a sentence imposed prior to the change. A doubt or question, as referred to in s 79(2), can only be one in which there is some utility in having an inquiry or a referral to the Court of Criminal Appeal. 88Third, one matter raised during the appeal concerned the appropriate form of relief that may be granted if the applicant's contention that Latham J erroneously construed s 79(2) was accepted. In the end result Senior Counsel for the applicant indicated that his client was content with declaratory relief as the purpose of the proceedings was to ventilate and resolve a question concerning the proper construction of s 79(2) and it would be open to his client to apply under Part 7 again. For that reason I join in the declaration proposed by Basten JA. I express no view on the availability or otherwise of an order in the nature of certiorari in respect of a decision under s 79(2) to refuse an inquiry.

Sinkovich v Attorney General of New South Wales

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (26)

Cited By (50)