Page 2152 - Week 07 - Thursday, 7 August 2014
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inquiry report. Nothing in this bill will affect the Supreme Court’s independence or ability to consider and act on an inquiry report. These amendments are solely intended to resolve a specific, technical question about the Supreme Court’s process in considering an inquiry report.
Part 20 of the Crimes Act provides an avenue for examining a conviction when all of the usual review processes have been exhausted. It is meant to provide for the most exceptional circumstances, and the drafting of the provision reflects that. An inquiry is not simply another criminal trial that establishes guilt or innocence or operates like an appeal. An inquiry examines matters where there is some reason to expect that the justice system might have erred, and erred in a way that was not corrected through the normal avenues of review. The broad powers of an inquiry board to look into anything related to its terms of reference reflect this unique role.
The ACT’s system allows an inquiry to be ordered by a Supreme Court judge. This provides an avenue for independent consideration of a request to begin an inquiry. At the same time, the Supreme Court sets terms of reference for the inquiry. Once an inquiry is ordered, a board is appointed to report against the terms of reference. An inquiry board appointed under the Crimes Act operates much like an inquiry under other legislation in the territory. A key difference is that in the Crimes Act process, the report of an inquiry goes directly to the Supreme Court for action.
The role of the executive government under part 20 of the Crimes Act is a supporting role. The government appoints a judicial officer to head a board of inquiry. Government funding and support are provided for the operation of the inquiry. All decisions about how, when and what to hear are in the hands of the inquiry board. The government has no decision-making or directing role in the inquiry process.
An inquiry that has been ordered by the Supreme Court ends in a report. The Supreme Court’s role is then to consider the report and make a decision about its findings. The decision can include confirming a conviction, quashing a conviction and quashing a conviction and ordering a retrial. The court also has the option of recommending to the executive that it considers remitting a penalty or granting a pardon to the convicted person. These options provide an avenue for the court to consider and decide whether the findings of an inquiry warrant a new decision about a conviction.
The Supreme Court’s power operates independently of both the government and the inquiry board. The court is not obliged to follow what an inquiry board has recommended or suggested in a report. The court is completely independent in deciding what to do with a conviction following an inquiry. It is at this stage that a question about section 431 of the Crimes Act has been raised in the current proceedings before the court.
The report of Acting Justice Martin’s inquiry is the first report delivered for consideration under part 20 of the Crimes Act. This bill is in response to issues that the Supreme Court considered in the process. During proceedings on the Eastman inquiry report, the court considered the effect of section 431, whether it applied to some provisions of the Crimes Act and not others, and questions of procedural fairness. The court considered that despite the wording of section 431, the court could
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