The Argus at KellyGang 18/12/1880

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The agitation for the reprieve of Edward Kelly warns us that it is high time to devise some means of protecting the Governor and the Executive from the painful and indecent pressure which they endured in that case, and to which they are liable in the future on the occasion of any capital conviction. The theory of a court of appeal in criminal cases is quite unknown to the English law. Every issue of fact is committed for discussion to the jury, and for all practical purposes their finding is conclusive. If there be a question whether the facts proved constitute an offence in law, or whether evidence admitted at the tail was lightly admitted, the judge may reserve the point for the consideration of the Supreme Court, but the verdict cannot be impeached or disturbed on the ground that it was contrary to the evidence, or that new evidence tending to discredit it has been discovered since the trial. A prisoner wrongly convicted cannot be declared innocent, but he is not absolutely without redress.

No power short of an act of Parliament can annul the verdict, but the Sovereign can remit the penalty attaching to it. The Royal prerogative of pardon is usually exercised in this colony on the recommendation of a law officer of the Crown, but the Governor's instructions expressly authorise him to act on his own responsibility in capital cases and against the opinion of his Ministers. The function is theoretically exercised only in cases where the presiding judge is dissatisfied with the verdict, or where new evidence which could not have been produced at the trial has subsequently come to light, but in practice the Royal prerogative is invoked in the case of almost every conviction for a serious offence. The secretary to the Law department, in his last report, says -

"During the past year no fewer than one hundred and forty seven (147) such applications have been received and carefully investigated, many entailing lengthened and anxious inquiries, for without such exhaustive treatment as all representations of the kind receive here, there could be no guarantee that strict justice would prevail as between the petitioners and the community at large for some of the applications have been found to contain the most specious statements as well as direct falsehoods, and would have been misleading to the last degree if relied upon without question; and it is only by the exercise of the utmost care, vigilance and research that such intentionally false statements can be properly dealt with and their object frustrated."  

The course usually pursued is that the prisoner presents a petition to the Governor setting out his innocence and asking for mercy. The Governor refers the matter to the Minister of Justice or other law officer, who pursues such inquiries as he thinks proper, and either declines to advise His Excellency to interfere, or advises him to remit or commute the sentence. The procedure is altogether informal, there is no open court, no examination of witnesses, no appearance of counsel on either side. The Minister is not oven responsible to Parliament for his advice in the usual way, for the Governor is under no obligation to accept it. The result is that both the Governor and his law officer are exposed to all the solicitation that political influence and private interest can enlist in the convict s service. The one is urged to advise an exercise of the prerogative, while the other is conjured to exercise it independently of that advice. In a community like ours, where formal access to the Governor and to Ministers is so easy, this system entails much personal suffering on the individuals with whom it rests to give effect to the Royal prerogative of mercy, and the administration of justice is sadly impeded if not impaired.

The same system exists in England, and the same scandals attend its administration, though the inaccessibility and decorum which characterise the Executive and the vis inertiae of a large population effectually prevent any such demoralising exhibition as that in the case of Edward Kelly.

An eminent law reformer, Sir James Stephen, has considered the question very carefully, and his suggestions are worthy of attention. He says:-

The true remedy for this state of things would be to constitute a court of law charged with the duty of doing openly and judicially what the Home Secretary at present does in secret. It might be enacted that if it appeared to the Secretary of State for the Home department that after the conviction of any person for any crime new evidence or new reasons to doubt the truth or accuracy of the evidence actually given had been discovered, or if the judge who tried the cause were dissatisfied with the verdict the Home Secretary might call together a court to be composed of the judge who tried the cause one other judge, and the Home Secretary himself who should call before them any witnesses they pleased and examine both them and the prisoner (if they thought fit) in open court; and also if they thought fit hear arguments by counsel and finally deliver judgment either confirming quashing, or varying the verdict of the jury as they thought proper. In order to protect the constitutional authority of the jury, it would be necessary to provide expressly as a condition precedent to the summoning of the   Court, that the Secretary of State should certify that new evidence had been discovered or that the judge should certify that he was dissatisfied with the verdict. In this way the prerogative of mercy would be con- fined to its proper functions-that of mitigating the seventy of punishments in particular cases. The absurdity of pardoning   guilt on the grounds of innocence would be done away with and the public would know in a definite authoritative form on what ground the verdict of a jury was over ruled."

We believe that a bill was drafted in this colony on the basis suggested by Sir James Stephen, though it never came under the consideration of the legislature. In any future measure it might be a question whether the Court of Appeal, if constituted, should not be directed to confine itself to recommending the Governor to exercise or decline to exercise the prerogative as the Minister of Justice does under the present system, and should not be permitted to quash the verdict of the jury. Such a provision would remove the evils now complained of, would retain for the Governor the sole right of decision on petitions for mercy, and would preserve the juryman’s sense of responsibility which might be diminished by the establishment of a tribunal competent to review and annul his verdict.


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