The 37-page petition and 21-page addendum containing some 40 well-founded reasons why Raymond John Bailey should be granted a posthumous pardon was rejected in September 2022 with no explanation of why.
This was plainly a breach of procedural fairness.
Her Excellency the Governor decided not to reply regarding this appalling miscarriage of justice which resulted in an innocent man being hanged.
She left it to her official secretary to write to me saying:
"Having, on the basis of advice, carefully considered the matters raised in the petition and addendums, Her Excellency has concluded that the documents do not provide a basis for exercising the prerogative of mercy in Mr Bailey's favour."
Not even "a basis"? What an appalling insult to the intellectual rigour applied by distinguished petitioners in reaching their conclusions that there were sufficient grounds for the petition to be granted.
THE FIGHT FOR JUSTICE CONTINUED!
I sent the following letter to Her Excellency:
I write regarding your decision not to exercise the prerogative of mercy in favour of Raymond John Bailey, a man who, on the evidence presented at his trial, could not have been the murderer of Thyra Bowman, the woman he was accused of killing.
I note that according to the letter sent to me by your official secretary, that on the basis of advice, you "carefully considered the matters raised in the petition and addendums".
I am grateful that you took the time to read the 37-page petition which obviously means so much to Lola Bateup, the 87-year-old sister of the innocent man who was hanged, and to the extended family who have lived with the opprobrium attached to Mr Bailey being officially branded as a murderer.
So I am puzzled that having read that Bailey’s shoe size did not match the murderer’s footprints found at the murder scene you rejected the petition.
Equally puzzling is that having read that it was the prosecution rather than the defence counsel which destroyed the credibility of Bailey's alleged confession, with the pathologist's report of the deaths of three victims completely contradicting the alleged confession, that you found against the petition.
The process you went through to reach your decision is obviously of crucial importance in understanding the rejection of the petition.
But your official secretary's letter did not provide any explanations for your decision not to grant a posthumous pardon.
I realise that there is no legislation requiring you to provide reasons for your decision but
official government websites throughout Australia refer to a 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.
The Federal Court of Australia website carries a paper on "Statements of Reasons: Issues of Legality and Best Practice" by Justice Melissa Perry
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
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.
Melbourne University Law Review carries a large paper on "The Principle of Open Justice and the Judicial Duty to Give Public Reasons".
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."
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.
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.
His honour goes as far as saying:
"..in appellate judgments the failure to give sufficient reasons has been considered as a ground of appeal."
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."
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."
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."
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..."
The Queensland Ombudsman advises:
"Even where a decision-maker is not required to give asons, it is good administrative practice to do so."
It is clear that there is agreement across Australian jurisdictions that adequate and sufficient reasons for judgements should be provided when decisions are made.
Using the reasoning contained in the above learned advice and:
In particular, I ask you to provide your reasons for rejecting:
Any advice you received may well have played a role in your decision-making process and, as such, might help to explain why you came to make your determination. As such I ask that it should be released on the basis of common law duty, sound administrative practice, transparency, accountability and in the interests of justice and procedural fairness.
And having read the entire transcripts of the committal, trial and appeal court judgement in the Bailey case, and then assembled what I still believe is a compelling case for a posthumous pardon, I very much look forward to you providing adequate and sufficient reasons for your judgement so that justice can manifestly and undoubtedly be seen to have been done.
In April more than three million people were made aware of the dreadful stain on South Australia's justice system when the Weekend Australian published a lengthy examination of the Bailey case and the petition.
In order to bring them up to date with developments I will be sending a copy of this letter to the Australian.
Sincerely,
Steve Bishop.
This was plainly a breach of procedural fairness.
Her Excellency the Governor decided not to reply regarding this appalling miscarriage of justice which resulted in an innocent man being hanged.
She left it to her official secretary to write to me saying:
"Having, on the basis of advice, carefully considered the matters raised in the petition and addendums, Her Excellency has concluded that the documents do not provide a basis for exercising the prerogative of mercy in Mr Bailey's favour."
Not even "a basis"? What an appalling insult to the intellectual rigour applied by distinguished petitioners in reaching their conclusions that there were sufficient grounds for the petition to be granted.
THE FIGHT FOR JUSTICE CONTINUED!
I sent the following letter to Her Excellency:
I write regarding your decision not to exercise the prerogative of mercy in favour of Raymond John Bailey, a man who, on the evidence presented at his trial, could not have been the murderer of Thyra Bowman, the woman he was accused of killing.
I note that according to the letter sent to me by your official secretary, that on the basis of advice, you "carefully considered the matters raised in the petition and addendums".
I am grateful that you took the time to read the 37-page petition which obviously means so much to Lola Bateup, the 87-year-old sister of the innocent man who was hanged, and to the extended family who have lived with the opprobrium attached to Mr Bailey being officially branded as a murderer.
So I am puzzled that having read that Bailey’s shoe size did not match the murderer’s footprints found at the murder scene you rejected the petition.
Equally puzzling is that having read that it was the prosecution rather than the defence counsel which destroyed the credibility of Bailey's alleged confession, with the pathologist's report of the deaths of three victims completely contradicting the alleged confession, that you found against the petition.
The process you went through to reach your decision is obviously of crucial importance in understanding the rejection of the petition.
But your official secretary's letter did not provide any explanations for your decision not to grant a posthumous pardon.
I realise that there is no legislation requiring you to provide reasons for your decision but
official government websites throughout Australia refer to a 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.
The Federal Court of Australia website carries a paper on "Statements of Reasons: Issues of Legality and Best Practice" by Justice Melissa Perry
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.
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.
Melbourne University Law Review carries a large paper on "The Principle of Open Justice and the Judicial Duty to Give Public Reasons".
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."
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.
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.
His honour goes as far as saying:
"..in appellate judgments the failure to give sufficient reasons has been considered as a ground of appeal."
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."
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."
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."
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..."
The Queensland Ombudsman advises:
"Even where a decision-maker is not required to give asons, it is good administrative practice to do so."
It is clear that there is agreement across Australian jurisdictions that adequate and sufficient reasons for judgements should be provided when decisions are made.
Using the reasoning contained in the above learned advice and:
- Bearing in mind 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
In particular, I ask you to provide your reasons for rejecting:
- 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.
Any advice you received may well have played a role in your decision-making process and, as such, might help to explain why you came to make your determination. As such I ask that it should be released on the basis of common law duty, sound administrative practice, transparency, accountability and in the interests of justice and procedural fairness.
And having read the entire transcripts of the committal, trial and appeal court judgement in the Bailey case, and then assembled what I still believe is a compelling case for a posthumous pardon, I very much look forward to you providing adequate and sufficient reasons for your judgement so that justice can manifestly and undoubtedly be seen to have been done.
In April more than three million people were made aware of the dreadful stain on South Australia's justice system when the Weekend Australian published a lengthy examination of the Bailey case and the petition.
In order to bring them up to date with developments I will be sending a copy of this letter to the Australian.
Sincerely,
Steve Bishop.
