Citation: R v Murray [2000] NSWCCA 331
Court: NSW Court of Criminal Appeal
Date: 23 August 2000
Judge(s): Heydon JA, Smart AJ, Ireland AJ
Background
The applicant pleaded guilty in the District Court at Penrith to five counts of passing valueless cheques and one count of obtaining a benefit by deception, with four additional cheque offences taken into account. The offences were committed between September 1994 and January 1995. The applicant was unrepresented before the Court of Criminal Appeal and appeared in person.
At sentencing in September 1999, Judge Tupman DCJ imposed what the court described as a minimal penalty: a deferred sentence with a recognisance, conditions of supervision and partial repayment, and 300 hours of community service on one count. The sentencing judge gave substantial weight to the applicant's long history of service to the Aboriginal community.
The applicant himself described the sentence as the best he had ever received. Rather than challenging his conviction or sentence, he came to the Court of Criminal Appeal seeking something different: a favourable exercise of the Royal Prerogative of Mercy.
Legal Issues
- Whether the Court of Criminal Appeal has jurisdiction to exercise, or direct the exercise of, the Royal Prerogative of Mercy.
Decision
Ireland AJ, with whom Heydon JA and Smart AJ agreed, held that the application was incompetent because the Court of Criminal Appeal has no jurisdiction to grant the relief sought. The Royal Prerogative of Mercy is a matter for the Executive Government, not the courts.
The court relied on the statement of Street CJ in R v Vachalec (1981) 1 NSWLR 351, which drew a clear boundary between the judicial power exercised by the Court of Criminal Appeal and the administrative power that resides with the Executive. The Court of Criminal Appeal's role is to identify and correct error in first-instance decisions; it has no authority to issue administrative orders that change the character of sentences or bring about the release of persons in custody.
The court also noted that this principle had been affirmed more recently in Jones (1993), and that the relevant statutory framework expressly preserves the Royal Prerogative of Mercy without subjecting it to judicial control. Section 53 of the Sentencing Act 1989 and, from April 2000, section 102 of the Crimes (Sentencing Procedure) Act 1999 both confirm that nothing in those Acts limits or affects the Prerogative of Mercy.
Orders Made
- The application was refused as incompetent.
Key Takeaways
- The Court of Criminal Appeal confirmed that the Royal Prerogative of Mercy falls entirely within the province of the Executive Government and is outside the court's jurisdiction.
- Under the established jurisdictional boundaries set out in R v Vachalec, the Court of Criminal Appeal exercises judicial power directed at identifying error in first-instance decisions; it cannot issue administrative directions altering the treatment or release of prisoners.
- Both section 53 of the Sentencing Act 1989 and section 102 of the Crimes (Sentencing Procedure) Act 1999 expressly preserve the Royal Prerogative of Mercy without conferring any judicial role in its exercise.
- An application to the Court of Criminal Appeal that does not challenge conviction or sentence, but instead seeks executive clemency, is incompetent and will be refused on jurisdictional grounds.
- A minimal sentence, described by the applicant himself as the best he had ever received, provided no basis for any appellate intervention in any event.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178B, 178BA, 558
- Sentencing Act 1989 (NSW), s 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 102
Cases:
- R v Vachalec (1981) 1 NSWLR 351
- Jones (1993) 70 ACrimR 449