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Court of Criminal Appeal 16 December 2021

Armstrong v R

[2021] NSWCCA 311

Assault & violence
APPEAL APPLICANT CONVICTED OF OFFENCES IN 2007 RECEIVED UNCONDITIONAL PARDON IN 2011 HELD

Citation: Armstrong v R [2021] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judges: Beech-Jones CJ at CL, Bellew J, Hamill J

Background

The applicant was convicted in the Hornsby Local Court in February 2007 on three charges arising from an incident in August 2006: assault, indecent assault, and malicious damage to property. He was sentenced to a good behaviour bond and his appeal against conviction was dismissed by Blanch CJDC in June 2007, though his bond was reduced.

Between 2010 and 2011, the applicant and various supporters petitioned the Governor of New South Wales for a pardon, citing his mental health history and personal circumstances. On 21 September 2011, the Governor granted him an unconditional (free) pardon. The accompanying letter confirmed that while the pardon updated his criminal record and conferred certain spent conviction benefits, it did not disturb the convictions themselves.

In March 2021, roughly ten years after receiving the pardon, the applicant filed an application in the Court of Criminal Appeal seeking an order under s 84(1) of the Crimes (Appeal and Review) Act 2001 (CAR Act) to have his convictions formally quashed. The respondent raised a threshold jurisdictional objection, contending that such an application under s 84 is only available following an inquiry conducted under Division 4 of Part 7 of the CAR Act.

  • Whether s 84 of the CAR Act permits an application to quash a conviction where no inquiry has been conducted under Division 4 of Part 7 of the CAR Act.
  • Whether the receipt of a free pardon, without more, provides a standalone gateway into the Court of Criminal Appeal to seek the quashing of a conviction.
  • Whether the Court of Criminal Appeal had jurisdiction to entertain the application at all.

Decision

Beech-Jones CJ at CL (with Bellew J and Hamill J agreeing) held that the Court of Criminal Appeal had no jurisdiction to entertain the application. The central question was one of statutory construction: whether s 84 of the CAR Act could be invoked by a person who had received a free pardon but whose conviction had never been the subject of a formal inquiry under Division 4 of Part 7 of that Act.

The Chief Judge examined the nature and effect of a free pardon in detail. A free pardon relieves a person from the consequences of a conviction but does not eliminate the conviction itself. This distinction is fundamental to the structure of Part 7 of the CAR Act, which draws a clear line between the executive act of pardoning and the judicial act of quashing a conviction.

On the construction of s 84, the Court found that the provision was not intended to operate as a freestanding mechanism available to any pardoned person. The statutory scheme, read as a whole and in light of its legislative history, required that a conviction first be the subject of an inquiry under Division 4 before an application to quash under s 84 could be made. The Court noted that this construction aligned with observations made by Basten JA (with whom Bathurst CJ, Gleeson JA and Payne JA agreed) in the earlier decision of Huynh v Attorney-General (NSW) [2021] NSWSC 297.

The Court also observed that the material the applicant relied upon, which was directed to compassion and mental health rather than any legal error in the original proceedings, was precisely the kind of material appropriate to an executive pardon and not to the judicial quashing of a conviction. Possible pathways for the applicant to seek the quashing of his convictions were noted to remain open, including via a referral or inquiry under other provisions of Part 7, though the Court made no assessment of the merits of any such approach.

Orders Made

  • The application was dismissed.

Key Takeaways

  • A free (unconditional) pardon relieves a person from the effects of a conviction but does not quash or eliminate the conviction itself. This distinction is fundamental to the structure of Part 7 of the CAR Act.
  • Under s 84 of the CAR Act, an application to quash a conviction is only available where the conviction has first been the subject of an inquiry conducted under Division 4 of Part 7. The provision does not create a freestanding right for any pardoned person to apply to the Court of Criminal Appeal.
  • The Court of Criminal Appeal confirmed that it had no jurisdiction to hear the application, given the absence of any prior Division 4 inquiry, regardless of the existence of a pardon.
  • Material directed to compassion, mental health, and personal circumstances is the domain of executive clemency through the prerogative of mercy, and is not an appropriate basis for the judicial quashing of a conviction under the CAR Act.
  • In dismissing the application, the Court expressly noted that other statutory pathways to seek the quashing of the convictions, such as a referral by the Attorney-General or the Supreme Court under other provisions of Part 7, remained potentially available and were not foreclosed by this decision.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), particularly ss 77, 79, 82, 84, 114 and Division 4 of Part 7
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Criminal Records Act 1991 (NSW)
- Crimes Legislation (Review of Convictions) Amendment Act 1993
- Criminal Appeal Act 1912 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- Huynh v Attorney-General (NSW) [2021] NSWSC 297
- Eastman v DPP (2003) 214 CLR 318; [2003] HCA 28
- Kelleher v Parole Board (NSW) (1984) 156 CLR 364; [1984] HCA 77
- Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275; [2008] HCA 37
- Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180
- Holzinger v Attorney-General of Queensland (2020) 5 QR 314; [2020] QCA 165
- Horwitz v Conner (1908) 6 CLR 38; [1908] HCA 33
- The Queen v Toohey; ex parte Northern Land Council (1980) 151 CLR 170; [1981] HCA 74
- Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
- Folbigg v Attorney General of New South Wales [2021] NSWCA 44
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
- R v Foster [1985] 1 QB 115