Return of the Wrongly Convicted: The Test for Post-Conviction Executive References in Australia

• DOI: https://doi.org/10.1108/S1059-4337(2012)0000057007
• Pages: 125-160
• Published date: 10 February 2012
• Date: 10 February 2012
• Author: David Caruso

RETURN OF THE WRONGLY

CONVICTED: THE TEST FOR

POST-CONVICTION EXECUTIVE

REFERENCES IN AUSTRALIA

David Caruso



ABSTRACT

The power of the executive to refer cases involving criminal conviction

back to an appellate court is a mechanism for guarding against

miscarriages of justice and regulating the inherent fallibility of the

criminal justice system. These cases typically come before the executive

by way of a petition that claims a person has been wrongfully convicted.

In Australia, however, there are few guidelines and little information as to

the criteria and standards by which the executive decides whether to refer

a petitioned case. The test the petitioner must meet is not clear. This

chapter therefore has two purposes. The first is to examine the types of

petitions most likely to be referred to the appellate court by the executive.

These cases are shown to fall into particular categories. The second is to

argue that, from these categories, inferences may be drawn about the test



Adelaide Law School, The University of Adelaide; Special Counsel, Fisher Jeffries

Barristers and Solicitors, a member of the Gadens Group; Associate, South

Australian Centre for Economic Studies.

Studies in Law, Politics, and Society, Volume 57, 125–160

Copyright r2012 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000057007

125

the executive uses in deciding whether to refer a petition. These inferences

follow from the common principles and links between the cases in each

category. The chapter identifies the test the petition should meet to have

optimal chance of referral.

INTRODUCTION

Scalia J, at a recent conference in Australia, noted that errors or wrong

decisions on the partof an intermediate appellate court arenot the litmus test

for a hearing before the US Supreme Court. There is simply not the capacity,

time, or resources for that to be the test. The test is, rather, whether the case

raises an overarching question or principle that requires resolution. For

example, a conflict in the interpretation of the same law by different circuit

courts. This approach is understandable and inevitable. But, it remains

difficult for practical considerations of time and money, no matter how real

and unavoidable, to dispel the unease of thinking – knowing – errors and

mistakes are not only ignored but must be ignored. There are some wrongs in

the law that must be righted. Scalia J referred to stays of executions as the

obvious caveat. In Australia, where capital punishment has been abolished,

petitions for mercy are the equivalent caveat.

In Australian jurisdictions, a person who is convicted of a crime and

exhausts their rights of appeal but remains steadfast in their protestations of

innocence has one last recourse: to petition the Governor in Council for

mercy. While petitions must go to the sovereign’s representative, the power

to deal with them now (Bennett, 2007) effectively rests with the executive, as

the governor is bound by its advice (ibid., p. 39, 45).

The executive may advise the governor to pardon the petitioner or reduce

the sentence in exercise of the Royal prerogative of mercy. This prerogative

was delegated to the governors of the Australian colonies by letters patent.

1

Prerogative powers describe a residue of miscellaneous fields of law in which

the executive government retains decision-making powers that do not depend

upon authority conferred by statute.

2

Prerogative or like executive powers to

pardon or exercise clemency exist in some 50 countries (Sebba, 1977, p. 84).

In addition but separate from the prerogative, legislation in every

Australian jurisdiction empowers the executive to refer the petitioned case

back to the Supreme Court of the jurisdiction.

3

The chief legal minister of

the particular jurisdiction, the Attorney-General (in the federal and state

jurisdictions) or Crown Law Officer (in the mainland territories), is given

DAVID CARUSO126

primary responsibility for deciding the fates of these petitions and, in the few

cases where the petition is not rejected, the Attorney prefers referral of the

matter back to the court. The minister may refer the matter back to the

court for its opinion or decision. The legislation across Australian states and

territories is in equivalent terms.

4

In South Australia, the relevant provisions

are in s 369 of the Criminal Law Consolidation Act 1935 (SA) (‘‘the CLCA’’)

that provides

Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the

consideration of any petition for the exercise of Her Majesty’s mercy having reference to

the conviction of a person on information or to the sentence passed on a person so

convicted, may, if he thinks fit, at any time, either—

(a) refer the whole case to the Full Court, and the case shall then be heard and

determined by that Court as in the case of an appeal by a person convicted; or

(b) if he desires the assistance of the judges of the Supreme Court on any point arising in

the case with a view to the determination of the petition, refer that point to those

judges for their opinion and those judges, or any three of them, shall consider the

point so referred and furnish the Attorney-General with their opinion accordingly.

The minister may refer any point of law or fact, or both, about the

petitioned case so the court can provide the minister with its opinion on the

point. The minister may or may not then take that opinion into account in

determining the petition (Pattenden, 1996, p. 63;Smith, 1983, p. 408).

5

As

that course leaves the final decision to the executive branch, deference to the

separation of powers means the minister prefers the full reference power,

6

whereby the petitioned case is referred to the court in full,

7

to be dealt with

by the court as an appeal.

8

The minister prefers that power if it is determined

that the petition has sufficient merit to be further adjudicated. That is the

vital first hurdle on a petition. It is what this chapter addresses. When will

the petitioned case be referred? What does the petitioner need to show or do

for their case to once again go before the court?

This chapter examines cases in which the reference power has directly or

indirectly resulted in review (and generally, but not necessarily, relief) for

convicted persons, to determine the types of case in which the referral power

has been exercised. It is argued that there are particular categories of case in

which a petition for mercy is most likely to be successful in the sense that the

executive will refer the case back to the appellate court. The reference power

retains critical importance in cases falling within these identified categories

as the only viable path to seek review of the conviction or sentence, given it

is generally the resort of persons who have exhausted their statutory rights

Return of the Wrongly Convicted 127