Mallard v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gummow,Hayne,Callinan,Heydon JJ.,Kirby J
• Judgment Date: 15 November 2005
• Neutral Citation: [2005] HCA 68,2005-1115 HCA B
• Docket Number: P77/2004
• Date: 15 November 2005

[2005] HCA 68

HIGH COURT OF AUSTRALIA

Gummow, Kirby, Hayne, Callinan AND Heydon JJ

P77/2004

Andrew Mark Mallard

Appellant

and

The Queen

Respondent

Representation:

M J McCusker QC with J J Edelman for the appellant (instructed by Clayton Utz)

B W Walker QC with B Fiannaca for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Criminal Code (WA), ss 21, 689(1).

Sentencing Act 1995 (WA), s 140(1)(a).

Mallard v The Queen

Criminal law — Appellant convicted of murder — Appellant petitioned for mercy — Attorney-General referred petition to Court of Criminal Appeal — Whether non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal — Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) — Duty to consider the ‘whole case’ — Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial — Whether jury verdict unreasonable or unsupportable — Whether jury verdict could not be supported having regard to the evidence — Whether a substantial miscarriage of justice occurred — Whether a retrial should be ordered.

Appeal — New trial — Petition for mercy — Reference of whole case to Court of Criminal Appeal — Scope of proceedings in Full Court.

Words and phrases — ‘fresh evidence’, ‘new evidence’, ‘whole case’, ‘as if it were an appeal’.

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of Western Australia dated 3 December 2003 and, in place thereof, order that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.

1 Gummow, Hayne, Callinan AND Heydon JJ. The appellant was tried and convicted by the Supreme Court of Western Australia (Murray J with a jury) of the murder of Mrs Lawrence, the proprietor of a jewellery shop, at Perth on 23 May 1994. The trial lasted 10 days. The appellant unsuccessfully appealed to the Court of Criminal Appeal of Western Australia. After he had served eight years of his sentence of life imprisonment in strict security, he petitioned for clemency. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal which dismissed the appeal. The appeal to this Court raises questions as to the way in which the Court of Criminal Appeal should proceed in determining a reference of such a petition and the evidence to which it may have regard in doing so.

The legislation

2 Part 19 of the Sentencing Act 1995 (WA) (‘the Act’) both preserves the royal prerogative of mercy and makes alternative provision for its effective exercise by the Court of Criminal Appeal. The relevant provisions are as follows:

‘ Part 19 — Royal Prerogative of Mercy

137 Royal Prerogative of Mercy not affected

This Act does not affect the Royal Prerogative of Mercy or limit any exercise of it.

138 Effect of pardon

• (1) A pardon granted in the exercise of the Royal Prerogative of Mercy has the effect of discharging the offender from the effects of the sentence imposed for the offence and of any other order made as a consequence of the offender's conviction.

• (2) A pardon does not quash or set aside the conviction for the offence.

139 Governor may remit order to pay money

The Governor may remit the whole or part of any sum of money that an offender is, under this Act or any other written law, ordered to pay as a penalty, or by way of forfeiture or estreat, or compensation, or costs, in relation to the offence, whether to the Crown or not.

140 Petition may be referred to CCA

• (1) A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Criminal Appeal either –

  • (a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or

  • (b) for an opinion on any specific matter relevant to determining the petition.

• (2) The Court of Criminal Appeal must give effect to the referral.

141 Offender may be paroled

• (1) the Court of Criminal Appeal of Mercy in relation to an offender who is sentenced to imprisonment, the Governor may make a parole order in respect of the offender.

• (2) An offender may be paroled under subsection (1) whether or not he or she is or will be eligible for parole and despite section 96(3).

• (3) The release date is that set by the Governor.

• (4) The parole period is that set by the Governor; but it must be at least 6 months and not more than 5 years.

• (5) Part 3 of the Sentence Administration Act 1995 applies in respect of the parole order and to the offender to whom the parole order applies.’

3 Part 19 was enacted in replacement of s 21 of the Criminal Code (WA) which read:

‘ Royal prerogative of mercy not affected

21 Nothing in this Code affects Her Majesty's royal 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 indictment 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 Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted; or

• (b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Attorney General with their opinion thereon accordingly.’

4 Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

5 The provision with which the Court is concerned in this case is similar in substance to provisions in other States 1.

6 The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an

approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.

7 The Attorney-General for the State of Western Australia referred this petition to the Court of Criminal Appeal under s 140(1)(a) of the Act. Criminal appeals are the subject of s 689 of the Criminal Code, which provides as follows:

‘ 689 Determination of appeals in ordinary cases

• (1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

  Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

• (2) Subject to the appeal provisions of this chapter the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial.

• (3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal.

• (4) On an appeal against sentence the Court of Criminal Appeal may have regard to whether...