Applies for Vic Legal Aid 2019

The following internal memo by Victorian Legal Aid was received by Mr Knight some years subsequent under his Freedom of Information request for this record.

Repeated denial to Mr Knight of such legal reports and opinions pertaining to each legal battle that he has initiated, has become standard practice by various courts and legal firms and agencies.  This includes political interference in the Judiciary’s decision of 1988 by the Victorian Parliament in 2014 and subsequently.

Such systemic denial and interference by others in the judicial process has undermined the principle of the Separation of Powers between the government  Legislature/Executive and Judiciary as enshrined in the Australian Constitution.   [Read pertinent extracted notes on Separation of Power below]

Separation of Powers (Constitutional)

Chapters I, II, and Ill of the  (Australian) Constitution confer the legislative, executive, and judicial powers of the Commonwealth on three different bodies which are established by the Constitution – the Parliament (Chapter I), the Executive Government (Chapter Ill, and the Judicature (Chapter Ill).

Legislative power is the power to make laws.

Executive power is the power to administer laws and carry out the business of government, through such bodies as government departments, statutory authorities and the defence forces.

Judicial power is the power to conclusively determine legal disputes, traditionally exercised by courts in criminal trials and litigation about such things as contracts and motor accidents.

Despite the structure of the Constitution there is no strict demarcation between the legislative and executive powers of the Commonwealth. Only the Parliament can pass Acts, but these Acts often confer on the Executive Government the power to make regulations, rules and by-laws in relation to matters relevant to the
particular Acts.

For example, the Parliament may enact in the Customs Act that no person may bring a ‘prohibited import’ into Australia and then leave it to the Executive to specify in the Customs Regulations what is a ‘prohibited import’. This delegation of legislative power is not as extreme as it may appear, however, as both Houses of Parliament usually retain the power to ‘disallow’ (that is, reject), within a specified time, any regulation which has been made by the Executive.
The distinction between the Parliament and the Executive Government is further blurred by the fact that the Prime Minister and the other Government Ministers (who form part of the Executive) must be members of Parliament. This reflects the principle of responsible government (discussed below) under which Government Ministers must be members of, and accountable to, the Parliament.

By contrast, the separation between the Judicature on the one hand and the Parliament and the Executive Government on the other is strict. Only a court may exercise the judicial power of the Commonwealth, so that, for example, the question whether a person has contravened a law of the Parliament (for example, by bringing a ‘prohibited import’ into the country) can only be conclusively determined by a court.

[SOURCE:  ‘Australia’s Constitution – with overview and Notes by the Australian Government Solicitor’ (AGS),  (undated), by (AGS), and Parliamentary Education Office, 7th ed. ISBN 9781742293431 (pbk.), pp iii – iv.]

 

---

 

So, this compounds to deny Mr Knight natural justice consistent with his original sentencing decision and terms in 1988 [Read Sentencing Terms: http://julianknight-hoddlestreet.ca/julian-knight-research-file/julian-knight-sentencing.html ]

The legal opinion contains many unsubstantiated assertions and errors.   This website analyses those flaws in our article: ‘Analysis of Victorian Legal Aid Rejection memo of Mr Knight;’s application for legal aid in 2019‘:  https://julianknight.com.au/analysis-of-victorian-legal-aid-rejection-memo-of-mr-knights-application-for-legal-aid-in-2019/

---

“Mr Knight seeks aid for appeals against conviction and sentence in respect of proceedings in which he was sentenced on 10 November 1988 to life imprisonment with a non-parole period of 27 years after pleading guilty to 7 counts of murder and 46 counts of attempted murder.

Mr Knight seeks to launch the appeals in the context of legislation passed by the Victorian Parliament in 2014 with bi-partisan support and upheld by the High Court in 2017 ¹ prohibiting his release on parole unless he is ‘(in effect) very substantially physically incapacitated.

It is immediately apparent that there are two substantial obstacles to the success of these applications.

First, these applications for leave to appeal are more than 30 years out of time. Second, the application for leave to appeal against conviction is made after a guilty plea.
Neither obstacle would be insuperable if it could be demonstrated that there had been a substantial miscarriage of justice. However, for the reasons outlined below, I consider that it is not possible to demonstrate that there has been a miscarriage of justice which would warrant the setting aside of the convictions or the sentence imposed.  There is no chance of the appeals proposed by Mr Knight succeeding and I accordingly recommend that aid be refused.

Background and analysis

 

The events which led to Mr Knight’s conviction and sentence occurred on 9 August 1987 and are notorious. They are summarised in the sentencing reasons of Hampel J in R v Knight [1989] VR 705.

Mr Knight proposes the following grounds of appeal against conviction:

1. The appellant only agreed to plead guilty to the charges on the presentment filed against him on the basis that the appellant would be granted a minimum non-parole term and, provided he did not pose a risk to the community, he would be released on parole at the expiry of that term.
2. The appellant was convicted of murders and attempted murders that he could not lawfully be convicted of due to a lawful defence (i.e. automatism) or because on the admitted facts the appellant could not have been convicted of the offences charged (e.g. the appellant was convicted of the attempted murder of persons he did not see).

————–

(NOTE 1:   See Knight v Victoria [2017] HCA 29 .

There are several conceptual difficulties with these grounds. The primary difficulty is that they are not supported by any of the existing material about the circumstances surrounding the entering of the guilty plea or the conduct of the plea hearing.

As to ground 1, it is not possible for a prosecuting authority to guarantee that a non-parole period would be imposed. That is a decision for a judge . It is not possible or permissible for a prosecuting authority to bind the Adult Parole Board about a future decision.

The premise that Mr Knight is not now a risk to the community is doubtful. Although there is clearly a political aspect to the 2014 legislation about Mr Knight, it was stated in Parliament by the then

Minister for Correction (Mr O’Donohue) in the Statement of Compatibility that Mr Knight had been found by the Adult Parole Board in 2012 to continue to be a danger to the community ² .

It is of some significance that the legislation was introduced by the minister responsible for the Department which has supervisory responsibility for Mr Knight. It can be assumed there were grounds for the Department believing the legislation was necessary.

It emerged in the High Court proceedings that a further report on Mr Knight had been sought by the Parole Board in 2016 from Professor Ogloff, the eminent forensic psychologist.

Consequently , it cannot be asserted with any confidence that Mr Knight would now be assessed as not presenting a risk to the community (using the terms of the appeal ground).

As to the second ground, the fact that a defence of automatism might have been available (as to which see further below) does not mean that Mr Knight could not lawfully be convicted if he choose to plead guilty .

The availability of a mental impairment ‘defence’ (or insanity in the terms appropriate to the time of Mr Knight’s case) does not mean that a person cannot choose to plead guilty and not avail themselves of the defence. Similar considerations apply to a choice not to rely on a defence of automatism.

Here, Mr Knight had very high-quality representation in his criminal proceedings and entered the guilty pleas on the advice of his representatives . The file notes made by Mr O’Brien of the Legal Aid Commissions Criminal Law Division, who was the solicitor handling the case (and the long-term manager of CLO), indicate that Mr O’Brien met repeatedly with Mr Knight. There were several discussions about the implications of pleading guilty , and that pleading guilty would represent an acknowledgement that Mr Knight understood the nature and quality of his acts.

The file note of 24 October 1988 records that Mr Knight on that day handed Mr O’Brien a letter confirming that he would plead guilty to all counts , confirming oral instructions he had given on 19 October.

The file note of 26 October 1988 records a conference at (HM) Pentridge between Mr Knight, Mr Richter QC and Mr O’Brien in which the detail of the plea submissions was discussed.

Mr O’Brien further records speaking with Mr Knight in the cells after the plea hearing on 28 October 1988, and that Mr Knight expressed satisfaction with the conduct of the plea.

The position taken by the Crown  on the issue of a non-parole period (as recorded in the sentencing reasons at 711) was that it did not contend that a non-parole period should not be fixed.  Neither the…

 

—————————–

NOTE 2:   Hansard, Legislative Council 18/2/2014 at p.304

…sentencing reasons nor the solicitor’s file notes support the view that the guilty plea was conditional on the Crown taking a supportive position on a future grant of parole.

It is not correct (as asserted in ground 2) that Mr Knight could not be convicted of attempted murder of persons he could not see. Like the shooter who fires blindly into a crowded stadium, it is enough that he intended to kill anyone he was able to hit.

Additionally , as noted by my instructor, Mr Knight appears to have declined to instruct his lawyers to seek the removal of some of the attempted murder charges. On 25 October (according to the solicitor’s files notes) he expressly said that he wanted it brought out that he had fired at police and the police helicopter. It was the charges relating to the police helicopter that had been the subject of withdrawal discussion.

The extensive psychological and psychiatric investigations into Mr Knight which were conducted subsequent to 9 August 1987 fell well short of establishing that he was either insane or in a state of non-insane automatism. The sentencing judge described the situation in this way ³ –

HAMPEL J:

“There is some difference of opinion between Dr. Sime on the one hand and Ors. Byrne and Bartholomew on the other as to the likely precise state of mind you were in when you commenced firing the shots.  Dr. Sime favoured the view that you were in an abnormal state of mind with reality and fantasy so mixed up that it was not possible later to determine whether at the time of the shooting you were responding to a psychotic delusion or the fantasy.   The others were of the opinion that you were able to distinguish fantasy from reality and in that sense you were not acting in a state of psychotic delusion.

In my opinion it is unnecessary, for the purpose of sentencing you, to attempt to determine, even if that were now possible, the precise nature of your mental aberration at the time of the shootings.  It is sufficient to say that I proceed to sentence you on the basis that although you were not medically or legally insane, you had a diagnosable serious personality disorder, a mental condition which all the professional witnesses recognise and accept existed and operated on you at the relevant time.”

As to automatism, it is significant that Mr Knight completed a long record of interview with police which commenced about 20 minutes after he was arrested. He cooperated in a long video-recorded re-enactment the following day. In the record of interview, he appears to have a clear recollection of what he had just done and that his intention was to kill the people he was shooting at.

The Judicial College Bench Notes on automatism make it clear that non-insane automatism is most commonly associated with amnesia . For the defence to be made out, there needs to be at the least a state of dissociation leading to the person losing control over their actions , even if they retain some memory of events.  See R v King (2005) 155 ACTR 55, Oonyadideh v R [1995] FCA 1425).  Mr Knight’s interview suggests he was well in control of what he was doing.

At best the reports of Dr Sime (a psychiatrist) and Mr Watson-Munro (a forensic psychologist) support the conclusion that Mr Knight was in a partly dissociated state. Dr Sime raised the possibility of Mr Knight being in the early stages of the development of a schizophrenic illness, however it appears that (with time) this possibility can be discounted.

As noted above, the file records do not support the assertion that there was any agreement about sentence which was a condition precedent to Mr Knight pleading guilty . According to the file notes, Mr Knight’s only reservation about pleading guilty arose from his desire to have the inquest into the…

——————-

 

NOTE:   3 [1989] VR 705 at 708

…Hoddle St Massacre reopened, so that he could make his views known. See the file notes dated 5, 11, 12 and 24 October 1988.

The above matters combine to support the conclusion that Mr Knight made a considered decision to plead guilty and no miscarriage of justice was occasioned by his doing so.  There was no evidence which cast doubt on his criminal responsibility.

Consistent with the test enunciated by the plurality in Weston (a pseudonym) v R ⁴ at [128], I can see no basis for an appeal against conviction.  In saying that I am leaving aside the very considerable difficulty arising from the long delay.

Sentence Appeal

Mr Knight has proposed the following grounds of appeal

1. The individual sentences of life imprisonment were not justified as none of the murders in question were in the worst category of murder;
2. The total effective sentence of life imprisonment is manifestly excessive given that none of the murders in question were in the worst category of murder;
3. The total effective sentence of life imprisonment was impermissible given that the appellant was a young offender (i.e. under 21-years-old);
4. The total effective sentence of life imprisonment was impermissible given that the appellant plead guilty pursuant to a plea bargain entered into with the Crown;
5. The total effective sentence of life imprisonment is in breach of s. 10 of the Charter of Human Rights & Responsibilities Act 2006 (Vic).

 

In my view none of these grounds has merit.

Grounds 1, 2 and 3 are predicated upon viewing the offences and the offender in isolation, without taking into account that each of the murders was part of a larger series of acts motivated by anti-social impulse and narcissism and without talking into account the profound impact on the community of the scale and public nature of the offending and its random and unprovoked character. The offending had the qualities of terrorism and as such fell into a special category for the purposes of sentencing.

It is well recognised that offending which is public and shocking can for that reason attract a life sentence, even if it is not on the scale of this offending . See for example Hudson v The Queen; OPP v Hudson [2010] VSCA 332 and Freeman v R [2011] VSCA 214. Life sentences have been imposed on young offenders for single counts of murder. See Hicks v R [2015] VSCA 14 and OPP v Todd [2019] vsc 385.  Brooking JA said the following in R v DJH [1998] VSCA 108 at [13]-[14]

The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration . I have long been of the view , however, that life sentences for murder in this State have become more rare than they should be, having regard to the number of dreadful murders which come before the court.

Very early in the days of the power conferred upon sentencing judges to pass finite sentences for murder the new legislation was considered in a most authoritative decision, that of the Court of Criminal Appeal in R. v. Dumas [1988] V.R.. 65.  I describe the decision as most authoritative because the draft judgment was, some time before its delivery,….

 

—————-

NOTE:   4 [2015] VSCA 354

…circulated to all members of the Court to give them an opportunity of making observations upon it. The same course was adopted with the draft judgment in R. v. Stone [1988] V.R. 141, which was delivered on the same day. This is the only occasion of which I am aware in the history of the Court where such a course has been taken. In Dumas, at 71, the Court said this:

“The crime of murder is a crime of the utmost gravity . In our opinion, it does not admit of categorizing each offence into degrees of gravity . While the new legislation will permit courts to sentence persons convicted of murder to terms of years and even to fix relatively low minimum terms in appropriate cases having egard to various facts which may be taken into account in mitigation of the penalty, nevertheless, the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.”

For reasons which are apparent from the analysis of the solicitor’s file notes above, there is no substance in ground 4.  There is no evidence of any plea bargain.  The file notes make clear that a head sentence of life was always expected by Mr Knight and his lawyers.

S.10 of the Charter is as follows –

10 Protection from torture and cruel, inhuman or degrading treatment

A person must not be-

(a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

Given the power to impose a life sentence for murder is conferred by statute, and the imposition of sentence is subject to appellate scrutiny and review, as a matter of law a life sentence cannot be regarded as falling within the ambit of s.10.

In addition to the above, there is no possibility a court re-sentencing Mr Knight today would impose a lower sentence.  It is notorious that all sentences, but particularly sentences for serious violence have risen greatly since 1988.  In 1988, mass murders were extremely rare and puzzling events.  That is no longer the case, even in Australia.

The impact of terror-related murders has substantially changed the sentencing landscape.

It was controversial in 1988 that a non-parole period was fixed for Mr Knight. It has become more controversial since. Mr Knight’s behaviour in prison, at least as it is perceived by law enforcement authorities , has not justified the hope expressed in sentencing by Hampel J for his rehabilitation as a result of the maturation process. It is highly likely in my view that a court re-sentencing Mr Knight today would impose a sentence of life without parole.

Given the existence of the legislation limiting his access to parole, Mr Knight’s situation could only improve in a practical sense if a re-sentencing court decided to impose a finite head sentence . Given the direction sentencing has taken in recent years , that appears to me not to be even a remote possibility.

Yours faithfully

[REDACTED]”

[End of Memo]

---

Our Comments:

 

Victorian Legal Aid is funded by the Commonwealth and Victorian governments but claims to operate independently of government.

Well, in Mr Knight’s Victorian Legal Aid sided biasedly with both levels of government.

From maximum security prison in Port Philip Prison, Mr Knight in 2019, prohibited from working and also restricted by the UK-based prison coportate manager G4S to receiving a maximum of $200 per calendar month from any/all sources, sought aid from the Victorian Legal Aid (government agency).

Such was to fund his appeals against conviction and sentence in respect of proceedings in which he was sentenced on 10 November 1988 to life imprisonment with a non-parole period of 27 years after pleading guilty to 7 counts of murder and 46 counts of attempted murder.

According to the memo, Mr Knight his appeals were against Victorian Parliament’s Act in 2014.  Mr Knight had appealed this Act to the High Court of Australia in 2017, but his appeal was rejected.

In it’s 2019 memo, Victorian Legal Aid effectively rejected Mr Knight’s application for Legal Aid.   However, as the memo clarifies, this was not on the basis of Mr Knight’s right as an incarcerated prisoner to seek legal aid, but instead upon Victorian Legal Aid’s rationale that his chances of success in his proposed case would likely fail.

QUOTE:

“There is no chance of the appeals proposed by Mr Knight succeeding and I accordingly recommend that aid be refused.”

 

Such rationale is presumptive, mostly assertive and made on both erroneous and otherwise very irrelevant grounds – indeed legalese bunkum and waffle!  We’ve noted this in previous legal arguments by the Crown against Mr Knight’s cases he has brought.

So here, the Victorian Legal Aid has made a cost-benefit decision, not a considered legal one, nor addressed Mr Knight’s arguments.  Instead, it has sided its decision with its funding masters, the Commonwealth and Victorian governments.

This smells of political corruption.

In 2014, unelected Liberal Party Premier of Victoria, Denis Napthine, (serving between 6 March 2013 and 4 December 2014) initiated an unprecedent hate legislation specifically against only Mr Knight during the time of the lead up to Mr Knight’s eligibility for parole.

The CORRECTIONS AMENDMENT (PAROLE) BILL 2014 (or long title: “A Bill for an Act to amend the Corrections Act 1986 in relation to the conditions for making a parole   order for the prisoner Julian Knight.”  (Read the Act: https://julianknight.com.au/legal-battles/napthine-subverts-judiciary/ )

The immediate subsequent Labor Party Premier of Victoria, Daniel Andrews, whilst Opposition Leader in 2014, publicly undertook to ensure Mr Knight is never released.   Andrew’s was Premier of Victoria between 4th December 2014 and 27th September 2023.

 

References:

The following PDF copy of the above memo is enclosed and downloadable for free to print.

 

The ADF and Julian Knight: a lesson on Defence’s culture reform