Reply from Hugh Borrowman dated October 17
Dear Mr Bishop
I refer to your letter dated 12 September 2022 addressed to Her Excellency the Governor in which you ask her to provide reasons for declining to exercise the prerogative of mercy in favour of Mr Raymond John Bailey, and to your subsequent letter of 12 October 2022.
As is the normal practice, I am replying on Her Excellency's behalf.
The prerogative of mercy is an exceptional power by which the Crown, representing the executive branch of government, can intervene in the outcome of the criminal justice process by relieving a person from the legal consequences of a conviction.
The prerogative is, however, separate and distinct from the ordinary criminal justice process. The role of the Governor in considering a petition for mercy is not that of a judge hearing a trial or appeal and a decision on a petition cannot equated with a judgment of a court. For this reason, analogies such as you have drawn from various judicial or administrative processes cannot readily be applied to the exercise of the prerogative.
Consideration of a petition will ordinarily only arise after the conclusion of the judicial process and after a person has exhausted their legal rights to appeal. This is not simply a matter of efficient process but because an exercise of the prerogative of mercy necessarily derogates from the principle of legal finality attaching to the judgments of the courts. The preservation of this principle is one of the reasons that the prerogative is exercised so sparingly.
Petitions are considered with the assistance of legal advice where appropriate, but the process of petitioning is not an extension of the judicial process by which to relitigate the merits of the case. This reflects the historical roots and evolution of the prerogative, the fact that there is no forum in which the Governor's decision can be reviewed, and because to approach petitions in that manner would erode the principle of finality.
Reflecting these principles/ the long-standing practice, consistent across all Australian jurisdictions, is that the Governor does not give substantive reasons when declining to exercise the prerogative of mercy. This practice has been recognised by the courts/ most recently in the Queensland Court of Appeal in Holzingerv Attorney-General (Qld) [2020] 5 Qd R 314.
Accordingly, I have to advise that Her Excellency is unable to agree to your request.
My reply dated October 21 2022
Your Excellency,
I refer to the letter dated October 17 from your official secretary written on your behalf in which he advises you are unable to agree to my request that you should explain your reasons for refusing to exercise the prerogative of mercy for Raymond John Bailey, despite Kirby P in the NSW Court of Appeal holding there is a "general common law duty to give reasons" irrespective of whether a decision is judicial or administrative in character and that the duty exists whether or not such an obligation has been legislated.
Bearing in mind such a common law duty has also been stated by many authorities, including Melbourne University Law Review and the Judicial Commission of New South Wales, I request that Your Excellency reconsider your decision.
A five-column headline "Why no pardon for 'innocent' killer?" In The Australian of September 20 over a half-page examination of the issues contained in the Bailey petition highlighted the need for Your Excellency to provide an explanation and would have done nothing to instil the confidence of hundreds of thousands of readers in the justice system.
There is the prospect that not to provide reasons for your decision could amount to a breach of procedural fairness and a consequent loss of public confidence in the justice system.
Your official secretary drew my attention to Holzinger v Attorney-General (Qld) [2020] 5 QD R 314 as recognising the practice of not providing reasons for declining to exercise the prerogative of mercy.
Ironically, the Holzinger judgement is essentially a 17,604-word explanation of the reasons for the rejection of a petition "for a pardon or an application for the petition be referred to the Court of Appeal".
The provision of this lengthy, highly-detailed explanation for a rejection does not seem to have resulted in any repercussions for the justice system. Indeed, it provides a valuable insight into how and why a petition for a pardon was assessed and rejected.
I suggest it would also bolster public confidence in the justice system in that it enables justice being seen to be done.
In my letter of September 12 I supplied a lengthy list of authorities explaining why explanations should accompany decisions and judgements.
Your official secretary asserts that your role in considering a petition for mercy is not that of a judge hearing a trial or appeal and a decision on a petition cannot equated with a judgment of a court.
I cannot see any difference between the roles. Just as judges and decision-makers assess evidence and come to conclusions, your task in dealing with a petition is to assess the evidence presented in the petition and reach a conclusion on whether or not to grant a pardon.
Your secretary says the analogies I drew "cannot readily be applied" - which obviously concedes that they can be applied, maybe not without hesitation but, nevertheless, such analogies can be drawn.
Having conceded this point will Your Excellency, therefore, please provide adequate and sufficient reasons for your judgement
- As a matter of sound administrative practice;
- In the spirit that justice should not only be done, but should manifestly and undoubtedly be seen to be done;
- In order to enhance transparency and accountability and give legitimacy to a decision
- In the interests of justice and procedural fairness
- And, especially, in order to enhance public confidence in the justice system.
It is pertinent to mention that when a petition to exercise the prerogative of mercy for a man named Kipper Billy was granted by the Queensland Governor in 2018 detailed explanations were provided on pages 62/62 of the 2018/19 annual eport of the Queensland Department of Justice and Attorney-General:
"The Governor sought advice from the Attorney-General, who in turn asked Crown Law for a detailed appraisal. Wendy Ussher, Principal Lawyer, Constitutional Law, was asked to research the merits of the petition, and visited Queensland State Archives at Runcorn to begin investigating. For more than a year she spent countless late nights in her office investigating the 19th century crime."
I am particularly concerned that despite the petitional evidence of a substantial miscarriage of justice in the case of Raymond John Bailey, your official secretary states that the prerogative to grant a pardon is exercised sparingly in order not to derogate from the principle of legal finality attaching to the judgements of the courts.
I cannot understand how it is in the interests of justice that a petition containing voluminous and compelling evidence of a substantial miscarriage of justice resulting in a hanging should have to compete with a desire to limit the number of petitions granted.
Surely, your only consideration should be to weigh the evidence presented.
As it is, the fact that minimising the number of pardons granted should play any role in assessing the merits of a petition involving a substantial miscarriage of justice has the distinct possibility of adding to a loss of public confidence in the justice system.
Your secretary points out that "there is no forum in which the Governor's decision can be reviewed" which makes it all the more essential to give legitimacy to such a decision by showing it was not made arbitrarily and that all issues raised were adequately considered.
In the case of Raymond Bailey, the public may well be baffled as to how a pardon has not been granted for a man whose shoe size did not match the footprints of the murderer.
The public has every reason to be puzzled when there is no response from Your Excellency to the finding of a retired judge that:
"The verdict of guilt is against the evidence and the weight of the evidence. It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand."
In my letter of September 12 I acknowledged there is no legislation requiring Your Excellency to provide reasons for your decision.
Equally. I am unaware of any legislation forbidding Your Excellency from providing reasons for your decision.
Your secretary asserts that it is a long-standing practice that the Governor does not give substantive reasons when declining to exercise the prerogative of mercy.
But such practice is no barrier to doing so.
Your secretary advises that Your Excellency is "unable to agree" to the request to provide reasons for the refusal to grant a pardon despite that fact that Your Excellency is able to ignore past practice and, as expressed in paragraph 95 (117) of Holzinger v Attorney-General (Qld) [2020] 5 QD R 314 recognise:
"The need to be able to correct a miscarriage of justice is a fundamental aspect of any system of criminal justice. It is more than a function performed to secure the interests of the individual who has been affected by the miscarriage of justice. It is integral to public confidence in the criminal justice system, and to ensuring the system operates fairly and within the law, while acknowledging that any system operates imperfectly and what is important is that there is always a capacity for correction.
In summary, in order to encourage public confidence in the justice system and on the basis that there is no legislation preventing Your Excellency from providing reasons for your decision will Your Excellency now give explanations for your decision to reject:
- Each of the 11 submissions from retired judge Warren Howell BA, LLB (UQ), LlM ( Lon), Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983;
- Each of the eight major arguments advanced in the submission by Francis Lippett, retired president of Queensland Parole Board, for 40 years a barrister in practice at the private bar in Queensland and New South Wales, and for many years before that, a Queensland police detective;
- The 21 arguments advanced in the petition and;
- The evidence in the addendum that the defence counsel was incompetent.
Once again, I will be endeavouring to inform the public of the issues involved in this dreadful miscarriage of justice by providing a copy of this letter to The Australian.
Response from Hugh Borrowman dated October 31 2022
I refer to your letter of 21 October 2022 addressed to Her Excellency the Governor about the prerogative of mercy in respect of Mr Raymond John Bailey.
Without engaging with the merits of the arguments advanced in your letter, they amount to a request for a significant change in public policy in the administration of the prerogative.
Such a change in policy, whether in the particular case of Mr Bailey or more generally, could only be effected by Her Excellency on the advice of the government.
Your letter has therefore been referred to the Attorney-General, the Honourable Kyam Maher MLC, for his consideration."
My letter dated November 21 2022 to Attorney-General Kyam Maher
Dear Mr Maher,
(1) I welcome a request to you by South Australian Governor, Her Excellency Frances Adamson, to consider changing a policy which has restricted transparency in the way in which administration of petitions for the prerogative of mercy is performed.
(2) Her request refers to matters raised in letters dated September 12 and October 21 this year I sent to her, and responses on her behalf dated October 17 and 31, regarding the baffling decision contained in a letter on her behalf dated July 11 that there is no basis for exercising the prerogative in favour of Raymond John Bailey, hanged in 1958 at Adelaide Gaol despite prosecution evidence that he could not have been guilty of the murder for which he was found guilty.
(3) The fact that there was a gross miscarriage of justice in this case is so clear cut that retired judge Warren Howell has stated:
"It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand".
(4) His submission was arrived at after considering a 37-page petition containing 21 reasons why a pardon should be granted and an addendum demonstrating that Bailey's defence counsel was incompetent in his representation and failed to mount a proper and adequate defence.
(5) There can be no public confidence in this confounding maladministration of justice when such comprehensive and compelling reasons are dismissed with not one explanation being given and in only 17 words: "...the documents do not provide a basis for exercising the the prerogative of mercy in Mr Bailey's favour".
(6) On the contrary, it is a fact that the documents do provide a massive basis on many levels, as attested by the distinguished people who have signed the petition and addendum.
(7) They comprise:
- 11 submissions from retired judge Warren Howell BA, LLB (UQ), LlM ( Lon), Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983;
- Eight major arguments advanced in the submission of Francis Lippett, retired president of Queensland Parole Board, for 40 years a barrister in practice at the private bar in Queensland and New South Wales, and for many years before that, a Queensland police detective;
- 21 arguments advanced in the petition and;
- Evidence in the addendum that the defence counsel was incompetent.
(8) The rejection of the Bailey petition without any explanation compounds the appalling miscarriage of justice which occurred in 1958, demonstrating that the present system is in need of the review recommended on behalf of the Governor.
(9) I submit that a review of policy requested on behalf of the Governor must include the following changes:
1. REASONS FOR DECISIONS MUST BE MADE PUBLIC
(10) There are no logical reasons to exempt the prerogative of mercy process from the need to give full and detailed explanations of how and why an adjudication has been made.
(11) Theoretically, the power lies with the governor as a representative of the Crown. In reality the governor has to act on a recommendation not from the monarch but from the government. The recommendation will have been formulated within the department of the attorney-general.
(12) This is made clear in the letter of October 31 on behalf of the Governor in reference to my arguments as to why the Governor should release the reasons for the petition being rejected. The response states these arguments "amount to a request for a significant change in public policy... which could only be effected on the advice of the government".
(13) Thus, the governor is unable to act independent of government advice. This is certainly reflected in the case of Holzinger v Attorney-General [2020] QCA 165, a case which was drawn to my attention by the Governor's office.
(14) Paragraphs 8 and 9 of the judgement state that provisions in more than one state confer the power to formulate advice to a governor on the Crown Law Officer and that this"...reflects the theory of responsible government and the reality that, in every case, the Governor will act in accordance with advice.
(15) In reality, therefore, the word "advice" might just as well read "instruction". This makes any decision on a petition of mercy a matter of governance on behalf of the state and, therefore, should be subject to the general common law duty to give reasons for decisions together with the prospect that not to do so could amount to a breach of procedural fairness.
(16) The Federal Court of Australia website carries a paper on "Statements of Reasons: Issues of Legality and Best Practice" by Justice Melissa Perry.
(17) In referring to statutory obligations to provide reasons, she observes they are intended to serve a number of important purposes and:
"...as Professors Robyn Creyke and John McMillan have explained:they
- encourage better and more rational decision-making;
- enhance government transparency and accountability and give legitimacy to a decision by showing that the decision was not made arbitrarily and that issues raised by interested parties are being adequately considered;
- and in compliance with procedural fairness, they enable those affected by the decisions to decide whether the decision has been lawfully made and why they have not succeeded.
(18) Justice Perry says:
"As the Administrative Review Council has observed:
… the process of writing reasons materially assists decision-makers during the process – facilitating the detailed consideration of all necessary issues. The process of providing for reasons disciplines a decision-maker's thinking.
(19) Melbourne University Law Review carries a large paper on "The Principle of Open Justice and the Judicial Duty to Give Public Reasons".
(20) It states:
"The principle of open justice — ‘that justice should not only be done, but should manifestly and undoubtedly be seen to be done' — is a central feature of the administration of justice under the common law."
(21) The Judicial Commission of New South Wales (Judcom.nsw.gov.au) provides in its "Handbook for Judicial Officers" a detailed examination of why adequate and sufficient reasons for a judgement should be provided.
(22) It includes a statement by the Honourable Justice M Weinberg AO:
"There is an ongoing debate whether a failure on the part of a decision-maker to provide reasons should be regarded as establishing a breach of procedural fairness, or some other ground of judicial review.
(23) His honour goes as far as saying:
"..in appellate judgments the failure to give sufficient reasons has been considered as a ground of appeal."
(24) The handbook for judicial officers says:
"The giving of reasons is a normal incident of the judicial process. The obligation to explain how, and why, a particular decision has been reached stems from the common law. It has been suggested that this duty has a constitutional dimension as well.[4]
"As a matter of sound practice, administrators usually give reasons."
(25) And:
"There is an ongoing debate, amongst administrative lawyers, as to whether a failure on the part of a decision-maker to provide reasons when asked to do so, should of itself be regarded as establishing a breach of procedural fairness, or some other ground of judicial review."
(26) The handbook for judicial officers says:
"In Osmond v Public Service Board of NSW, Kirby P, in the NSW Court of Appeal, held that there was a general common law duty to give reasons. That duty existed irrespective of whether the decision was judicial or administrative in character. His Honour emphasised that the duty existed whether or not the legislature had chosen to impose such an obligation.
"It is fair to say that the merits of giving reasons have never seriously been doubted.
(27) The handbook for judicial officers also provides this quote from Michael Hudson McHugh AC QC (1987) 10 NSWLR 247 at 279):
"...it enables the parties to see the extent to which their arguments have been understood and accepted..."
(28) The Queensland Ombudsman advises: "Even where a decision-maker is not required to give reasons, it is good administrative practice to do so."
(29) It is clear that there is agreement across Australian jurisdictions that adequate and sufficient reasons for judgements should be provided when decisions are made.
(30) Even if the argument that the decision on a petition for mercy is an instruction from a government department is not accepted, I submit that does not negate an argument that such a decision should be accompanied by reasons.
(31) This is due to
- The general common law duty to give reasons for decisions;
- As a matter of sound administrative practice;
- In the spirit that justice should not only be done, but should manifestly and undoubtedly be seen to be done;
- Under the described obligation to explain how, and why, a particular decision has been reached;
- In order to enhance transparency and accountability and give legitimacy to a decision
- And In the interests of justice and procedural fairness.
(32) The letter of October 17 on behalf of the Governor asserts that her role in considering a petition for mercy is not that of a judge hearing a trial or appeal and a decision on a petition cannot equated with a judgment of a court when it comes to reasons for judgements and decisions.
(33) I submit that just as judges and decision-makers assess evidence and come to conclusions, the task in dealing with a petition is to assess the evidence presented in the petition and reach a conclusion on whether or not to grant a pardon.
(34) The letter says the analogies drawn "cannot readily be applied" - which obviously concedes that they can be applied, maybe not without hesitation but, nevertheless, such analogies can be drawn.
(35) Indeed, they should be drawn and, therefore, reasons for decisions must be introduced.
(36) At the moment the petition process is more akin to the Star Chamber of King Charles I in which proceedings were secret rather than the openness and transparency heralding the era of King Charles III.
(37) There is no accountability. The advice, amounting to an instruction, to the governor could be faulty. There are no checks nor balances.
(38) Such a process should have no place in today's justice system and offers no reason for the public to have confidence in the system.
(39) I thank the Governor's office again for drawing my attention to Holzinger [2020] QCA 165 in which at paragraph 62 it says: "In the case of a petition for mercy the Attorney-General would have to consider the requirement to ensure that her decision supports the maintenance of public confidence in the system of the administration of criminal justice."
(40) The decision regarding the petition for a pardon for Raymond John Bailey fails to abide by this requirement to ensure that it supports the maintenance of public confidence in the system of the administration of criminal justice.
(41) Finally, the letter of October 17 on behalf of the Governor states the Governor "does not give substantive reasons" when declining to exercise the prerogative of mercy due to long-standing practice as recognised in Holzinger v Attorney-General [2020] QCA 165.
(42) Ironically, the Holzinger judgement does the opposite. It is essentially a 17,604-word explanation of the reasons for the rejection of a petition "for a pardon or an application for the petition be referred to the Court of Appeal".
(43) The provision of this lengthy, highly-detailed explanation for a rejection does not seem to have resulted in any repercussions for the justice system. Indeed, it provides a valuable insight into how and why a petition for a pardon was assessed and rejected.
(44) I submit it would also bolster public confidence in the justice system in that it enables justice being seen to be done.
2 MERIT MUST HAVE PRECEDENCE OVER A PERCEIVED NEED TO LIMIT THE NUMBER OF PARDONS GRANTED
(45) The letter of October 17 on behalf of the Governor refers to a need to exercise the prerogative sparingly in order to preserve the principle of legal finality.
(46) I cannot understand how it is in the interests of justice that a petition containing voluminous and compelling evidence of a substantial miscarriage of justice resulting in a hanging should have to compete with a desire to limit the number of petitions granted.
(47) I submit that it is essential to stipulate in legislation that petitions for mercy must be decided on the merits of the petition which must always override any perceived need to limit the number of successful petitions.
3 INSTITUTING A RIGHT OF APPEAL
(48) The letter of October 17 on behalf of the Governor refers to "historical roots and evolution of the prerogative" and "the fact that there is no forum in which the `Governor's decision can be reviewed."
(49) The "historical roots" of the power go back to at least the 17th century and there has been much evolution. I submit there is a need for this evolution to continue to take into account modern legal developments and progress.
(50) One of the major reforms has been creating a means for appeals to be made in relation to decisions and judgements.
(51) The first Australian Court of Appeal was established in New South Wales in 1966. In 1975 the Australian Government established the Administrative Appeals Tribunal as a general administrative tribunal to review a broad range of government decisions.
(52) It was not until 2021 that a new court of appeal was established for South Australia.This reform brought South Australia into line with most other Australian jurisdictions leaving only Tasmania not to have a separate Court of Appeal at that time.
(53) Will South Australia lag again in instituting a right to appeal on petitions of mercy? Or will it be a leader in making a sensible reform?
(54) There is no logical reason why a right to appeal should not be possible when decisions are made on petitions for the prerogative of mercy, especially when, as outlined above, those decisions are, in fact, formulated within a government department and should, therefore, be subject to the same checks and balances.
(55) Appeals could be made to the Governor-General, with the Governor-General referring them to the federal attorney-general for review and decisions.
4 CHANGES MUST BE RETROSPECTIVE
(56) The request to you to consider changing policy relates to transparency in the administration of petitions for the exercise of the prerogative of mercy, "whether in the particular case of Mr Bailey or more generally".
(57) I submit that the request was made primarily to deal with the questions and arguments I raised regarding Raymond Bailey's conviction and, as such, any changes made should be made retrospective in order to demonstrate how and why such a clearcut case for a pardon was rejected.
5 BEST PRACTICE
(58) I quote from the Australian Government Attorney-General's website: "Administrative law is the body of law that regulates government decision making. Access to review of government decisions is a key component of access to justice. The Australian Government works to improve the quality of access to justice for individuals by adopting: best practice in administrative decision making; effective review and accountability mechanisms."
(59) The Full Court of the Federal Court (as reported at 95/117 of Holzinger v Attorney-General (Qld) (2020) QCA 165 had these observations:
"The need to be able to correct a miscarriage of justice is a fundamental aspect of any system of criminal justice. It is more than a function performed to secure the interests of the individual who has been affected by the miscarriage of justice. It is integral to public confidence in the criminal justice system, and to ensuring the system operates fairly and within the law, while acknowledging that any system operates imperfectly and what is important is that there is always a capacity for correction. (my emphasis).
(60) I urge you to take particular note of those words from such an august source.
(61) Please keep me informed regarding your decision on the request for a change in policy.
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