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Criminal Pardons (NT)

Updated on Oct 17, 2022 4 min read 354 views Copy Link

Fernanda Dahlstrom

Published in May 13, 2022 Updated on Oct 17, 2022 4 min read 354 views

Criminal Pardons (NT)

When a person is wrongly convicted or sentenced in Australia, the executive retains the right to exercise the Royal Prerogative of Mercy. This allows the Governor-General, acting on the advice of the Attorney-General, to overturn a conviction or sentence and pardon a person or refer the matter to a court for determination. In the Northern Territory, this power is incorporated into the criminal justice system through sections 431, 432 and 433 of the Criminal Code Act 1983.

Criminal Code Act

Section 431 of the Criminal Code states that a Crown law officer may, when petitioned for the exercise of the prerogative of mercy, in relation to a sentence or finding of guilt:

  • refer the matter to a court for determination; or
  • refer the matter to a court for its opinion on any point arising in the case.

When the court extends the prerogative of mercy to a person, it can do so on condition that the person enter into a recognisance, in the same manner as a person conditionally released by a court.  

A pardon under section 433 discharges the person from the consequences of the finding of guilt.

When can a pardon be given?

A free and absolute pardon should only be given where the Attorney-General is satisfied that:

  • the person is morally and technically innocent of the offence and has no remaining avenue of appeal open against conviction; or
  • the person is morally and technically innocent of the offence and there are exceptional circumstances that justify the grant of a pardon, bearing in mind the need to respect the separation of powers.

Applying for a pardon

An application for an exercise of the Royal Prerogative of Mercy can be made in writing to the Commonwealth Parole Office.  

The application should provide detail about the case and the grounds on which the exercise of the power is sought and specify whether the person is seeking the Royal Prerogative of Mercy, or a statutory referral, or both.

Statutory referrals

If a statutory referral is made, a matter is referred to an appeal court to be reconsidered as if it were an appeal by the defendant.

Chamberlain v The Queen

The most well-known Northern Territory case in which a pardon was issued is the matter of Lindy and Michael Chamberlain.

Lindy and Michael Chamberlain were found guilty of the murder of their baby daughter Azaria by the NT Supreme Court in 1982. The Chamberlains had been camping at Uluru when the baby went missing from their tent. Lindy claimed to have seen a dingo leaving the tent and commenced searching the area, but later became a suspect.

On circumstantial evidence and forensic evidence, Lindy was found guilty of murder and Michael of being an accessory after the fact. Lindy was sentenced to life imprisonment without parole and Michael to a three-year suspended sentence.

The Chamberlains appealed against their convictions to the Full Court of the Federal Court, but the appeal was dismissed. They then appealed to the High Court, which also dismissed the appeal.

In 1986, new evidence became available which indicated that the likely cause of the baby’s death was a dingo attack and that the Chamberlains’ convictions were therefore unreliable.

The Chamberlains were pardoned in 1987, and the Supreme Court quashed their convictions in 1988.

In 1992, the couple received 1.3 million dollars in compensation.

A series of coronial inquests into the baby’s death was held, but it was not until the final inquest in 2012 that a ruling was made that Azaria Chamberlain was taken by a dingo and that the dingo caused her death. Coroner Elizabeth Morris apologised to the family and an amended death certificate was provided to them.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Published in

May 13, 2022

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
Fernanda Dahlstrom

Fernanda Dahlstrom

Content Editor

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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