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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-03-06 Daily Xml
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Answers to Questions

PETITION FOR MERCY PROCESS

In reply to the Hon. A. BRESSINGTON (7 June 2011) (First Session).

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations): The Attorney-General has provided the following advice:

1. Each and every petition seeking the exercise of the prerogative of mercy made to His Excellency the Governor is considered on its merits and treated in the following way:

Every petition received by His Excellency is forwarded to the Office of the Premier in order that His Excellency may receive the advice of his Ministers. The Premier forwards the petition to the Attorney-General who seeks the assistance of the Law Officers. The usual process involves the preparation of an opinion by the Solicitor-General on the merits of the petition for the consideration of the Attorney-General.

Once the Attorney-General has received the benefit of the Solicitor-General's opinion, there are four options, depending on the relief the petitioner seeks, open:

(1) The Attorney-General could refer the whole case to the Full Court of the Supreme Court to consider the matter as an appeal under section 369 (a) of the Criminal Law Consolidation Act 1935 or,

(2) refer any point in the matter for the opinion of the Judges of the Supreme Court under section 369 (b) of the Act.

(3) His Excellency, acting upon the advice of Executive Council, could exercise the prerogative of mercy so as to pardon a petitioner or to remit his or her sentence or,

(4) His Excellency, acting upon advice, could advise the petitioner that it is not proposed to take any further action in respect of the petition.

2. The history of Mr Henry Keogh's fourth petition dated 29 January 2009 is long and complex.

It is to be noted that the final submission made in support of that petition was not received by the Solicitor-General until November 2011. Over that period of time, the Solicitor-General was in communication with Mr Keogh's legal advisers on the material the Solicitor-General was to consider in support of Mr Keogh's petition.

On 20 September 2011, the Solicitor-General was informed that Mr Keogh had changed his legal team. The lawyers requested that work on the petition stop until such time as the material presented to the Solicitor-General in support of the petition had been re-assessed by counsel. On 15 November 2011, Mr Keogh's counsel wrote to the Solicitor-General identifying the issues the new legal team considered were relevant in addressing the petition. On 6 February 2012, the Solicitor-General received further advice from Mr Keogh's legal advisers on the information previously provided in support of the fourth petition and its relevance to the petition.

The work undertaken on Mr Keogh's petition is far advanced. It is also to be remembered that the prosecution case against Mr Keogh was circumstantial. This together with the nature of the complaints Mr Keogh makes results in a substantial task to be undertaken against the background of three previous petitions. At all times the intention has been to give Mr Keogh every opportunity to put the matters he considers relevant to his petition to His Excellency.

On the 19th of September, 2012 his legal team withdrew his fourth petition.

3. Every person who considers that they are wrongfully convicted of a criminal offence has the right to appeal to the Full Court of the Supreme Court of South Australia. That right is guaranteed by section 352 of the Criminal Law Consolidation Act 1935. From the Full Court there exists the prospect of an appeal to the High Court as provided for by section 73 (ii) of the Constitution if a grant of special leave is first obtained.

Where a convicted offender exhausts their appeal rights it is true that their only means of having their conviction further reviewed is by way of the petition process and the exercise of the discretion under section 369(a) of the Criminal Law Consolidation Act 1935. As indicated in answer to the first question, each and every petition forwarded to His Excellency the Governor is considered closely by the Law Officers who advise the Attorney-General. The Attorney-General will adopt whichever one of the four courses of action set out above he considers appropriate.

4. The question assumes that there has been a point arising in a case requiring the assistance of the Full Court to answer. This has not occurred and nor has any petitioner sought referral of a point under section 369(b) of the Criminal Law Consolidation Act 1935.

5. & 6. The process of a petition to His Excellency the Governor for the exercise of the prerogative of mercy does not involve the publication of detailed reasons for a refusal to exercise the prerogative of mercy in a petitioner's favour. This has long been the case and considered appropriate at this stage of the process by successive governments of all persuasions in this State. There are four primary reasons for this:

(1) The procedure contemplated by section 369 of the Criminal Law Consolidation Act 1935 follows upon a process that includes the following components, all designed to ensure that a conviction beyond reasonable doubt is as safe as humanly can be guaranteed:

The burden and standard of proof being borne by the prosecution;

The right to silence;

The independent exercise of the prosecutorial discretion;

The disclosure of the prosecution case;

The availability of legal aid and legal representation;

The committal process;

The right to choose what evidence to adduce, what evidence to challenge, and what issues to contest;

The right to apply for a stay of the matter and to have evidence excluded;

The conduct of a trial before an independent judicial officer and, in the case of a matter triable before a jury, a jury;

The right to appeal to the Full Court of the Supreme Court against conviction and sentence; and

The right to seek special leave to appeal to the High Court of Australia.

(2) That process involves the independent judiciary and the people of this State, that is, the jury system. The administration of criminal justice is in no small part in the hands of the people of this State and the Executive Government should be slow to substitute any opinion it holds for that of the people of the State properly instructed by the independent judiciary after a fair trial in which the accused has chosen what evidence to call, what evidence to test, and what issues to contest.

(3) Allied to the second reason, our system should not be such that criminal convictions and the outcome of appeals to the Court of Criminal Appeal take on a conditional flavour.

(4) One must have regard to the victims of crime. The process we have in place is long and complex. It places great strain on all involved. For all involved and the victim, in particular, finality is important. That is not to say, of course, that the door is shut. It never is. As indicated, each and every petition is properly considered and if it is appropriate to refer a case or a point to the Full Court, that will be done.

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