FEDERAL COURT OF AUSTRALIA

Martens v Commonwealth of Australia [2009] FCA 207

ADMINISTRATIVE LAW — Application for judicial review of a decision of the Cth Executive not to refer matter to an appellate court — Division of portfolio responsibilities between two Ministers — Effect of division — Where two Ministers appointed to administer under a governing Commonwealth statute where relevant State Act only refers to the State Attorney-General — Whether Minister for Home Affairs empowered to refer a decision to an appellant court pursuant to s 672A Criminal Code 1899 (Qld) as applied by s 68 Judiciary Act 1903 (Cth)  — Whether decision reviewable under Administrative Decisions (Judicial Review) Act 1977 (Cth) — held decision reviewable — Whether Minister failed to take into account relevant considerations — Held Minister for Home Affairs empowered to make decision but failed to take relevant considerations into account — Decision set aside

CRIMINAL LAW — Appeal — New trial and inquiry after conviction — Pardon, commutation of penalty, on petition for pardon and inquiry after conviction — Whether decision not to refer case to an appellate court was amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) — Nature of test to apply in deciding whether or not to refer case to an appellate court— Held correct test not applied

STATUTORY INTERPRETATION—Judiciary Act 1903(Cth) s 68 —Judicial Review Act 1991 (Qld) — application of Criminal Code Act 1899(Qld) s 672A to federal offenders by virtue of the Judiciary Act 1903 (Cth) – s 15A Acts Interpretation Act 1901 – relevance of constitutionally permissible Commonwealth public administration practice to determination of which officer of the Commonwealth able to exercise powers conferred in State Law made applicable by s 68 Judiciary Act – held practice relevant

CONSTITUTIONAL LAW — Constitution — Power of Governor-General to appoint officers to administer departments of state of Commonwealth – effect of this practice in relation to identification of which officer able to exercise powers in State law applied by s 68 of the Judiciary Act 1903

Acts Interpretation Act 1901 (Cth) ss 15A, 19A

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(2), 13

Crimes Act 1914 (Cth) s 50BA

Director of Public Prosecutions Act 1983 (Cth) s 9(7)

Judiciary Act 1903 (Cth) ss 2, 68, 68(1), 68(2)

Commonwealth Constitution ss 61, 62, 64, 65

Constitution of Queensland Act 2001 (Qld) s 36(2)

Judicial Review Act 1991 (Qld) ss 31(2), 38, 38(2)

Criminal Code 1899 (Qld) ss 1, 18, 672A

Crimes Act 1958 (Vic) s 584

Criminal Law Consolidation Act 1935 (SA) s 369

Attorney-General (Cth) v Foster (1999) 84 FCR 582 cited

Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 cited

Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 cited

Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 considered

Dyers v The Queen (2002) 210 CLR 285 considered

Eastman v Attorney-General (ACT) (2007) 210 FLR 440 considered

Eastman v Australian Capital Territory (2008) 163 ACTR 29 considered

Gallagher v The Queen (1985-1986) 160 CLR 392 considered

Horwitz v Connor (1908) 6 CLR 38 cited

Mallard v The Queen (2005) 224 CLR 125 considered

Mickelberg v The Queen (1988-1989) 167 CLR 259 considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 1 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 cited

Peel v R (1971) 125 CLR 447 considered

Pepper v Attorney-General (Qld) [No 2] [2008] QCA 207 considered

Perrier v Kerr (sued in his capacity as Minister for Justice) (VG 865 of 1995, 17 August 1997, unreported) followed

R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 considered

R v Judd (1919) 26 CLR 168 cited

R v Martens [2007] QCA 137 considered

R v Murphy (1985) 158 CLR 596 considered

R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 cited

R v Wilkes (1768) 4 Burr 2527; 97 ER 123 cited

Re Judiciary and Navigation Acts (1921) 29 CLR 257 cited

Re Patterson; Ex parte Taylor (2001) 207 CLR 391 considered

Rhode v DPP (Cth) (1986) 161 CLR 119 considered

Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 considered

The Queen v. Young (No 2) [1969] Qd R 566 considered

von Einem v Griffin (1998) 72 SASR 110 considered

Williams v The King [No 2] (1934) 50 CLR 551 cited

Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 considered

The Hon LJ King AC, QC, “The Attorney-General, Politics and The Judiciary” (2000) 74 Australian Law Journal  444 cited

FREDERICK ARTHUR MARTENS v COMMONWEALTH OF AUSTRALIA and BOB DEBUS

QUD315 of 2008

LOGAN J

6 MARCH 2009

BRISBANE (HEARD IN CAIRNS)

THE COURT ORDERS THAT:

1.                  The Second Respondent’s decision of 4 September 2008 to refuse to refer a case to the Court of Appeal pursuant to s 672A(a) of the Criminal Code 1899 (Qld) as applied by s 68 of the Judiciary Act 1903 (Cth) be set aside.

2.                  The matter be remitted to the Second Respondent for further consideration according to law.

3.                  The Respondents pay the Applicant’s costs of and incidental to the application to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 30 October 2006, in the Supreme Court of Queensland at Cairns, Frederick Arthur Martens (the Applicant) was convicted of one count of having sexual intercourse with a person under the age of 16 years while outside Australia contrary to s 50BA of the Crimes Act 1914 (Cth). The offence was alleged to have occurred in Port Moresby, Papua New Guinea, between 10 and 16 September 2001. After a 6 day trial in which the Applicant gave evidence in his defence, a jury found him guilty of that offence. Upon conviction, the Applicant was sentenced to a term of imprisonment of 5½ years. A non-parole period of 3 years was fixed.

2                     The Applicant appealed to the Queensland Court of Appeal against the conviction. He also sought leave to appeal against the sentence. On 20 April 2007, the Court of Appeal dismissed his appeal against conviction and refused his application for leave to appeal against sentence.

3                     On 5 March 2008 a document entitled “The Queen v Frederick Arthur Martens: A Corrupt Prosecution”, apparently prepared by Cameron Price Lawyers, the solicitors presently representing the Applicant, was directed to the Honourable Robert John Debus MP, then as now the Minister for Home Affairs (the Minister). On its face the document stated that it “had been prepared under relevant legislation both State and Commonwealth with the object of the release of Captain Martens, and upon his instruction as to the content and the factual material in support thereof.” The use of the title “Captain” in relation to the Applicant is derived not from naval or military service but rather from his civilian occupation. At the time of the commission of the offence and until imprisoned the Applicant was a senior commercial pilot operating an aviation business in Papua New Guinea.

4                     Following subsequent exchanges between officers of the Attorney-General’s Department (the Department) and Cameron Price Lawyers, the receipt by the Department of comment from the Commonwealth Director of Public Prosecutions and the Australian Federal Police and further submissions from Cameron Price Lawyers, notably a submission in reply dated 12 August 2008, a submission was directed to the Minister by the Department.  By that time, and seemingly as a result of assistance given to Cameron Price Lawyers by officers of the Department, what had been sought in the document of 5 March 2008 had come to be refined so as to be taken to constitute a request to recommend to the Governor-General the granting of a pardon to the Applicant or, alternatively, to refer the case to the Queensland Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld) (the Queensland Criminal Code).

5                     On 4 September 2008, for reasons which he set out in and further appended to his letter communicating his decision, the Minister declined each of the requests made of him.

6                     The following month, the present proceedings were instituted pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The Applicant seeks an order of review in respect of “the decision of the respondents declining to exercise the powers under s 672A of the Queensland Criminal Code”. The use of the plural “respondents” is referable to the Applicant’s joinder of the Commonwealth of Australia as a party. That was an unnecessary joinder, it being both necessary and sufficient for the Minister to be named as the Respondent.

7                     One of the grounds of review alleges that the Minister did not have jurisdiction to make the decision under review. The other grounds of review are, save in one respect, not particularised, doing nothing more than reciting in an uncritical way grounds of review specified in s 5 of the ADJR Act.

8                     An allegation of bad faith on the part of the Minister purports to be particularised but not in a way that engages with how the Minister’s decision, as opposed to the alleged conduct of others, is said to have been attended by bad faith. Perhaps in recognition of this, bad faith as a ground of review was not pressed in the course of the oral submissions made on behalf of the Applicant. It is appropriate to record that there is not a scintilla of evidence which would support a finding that the Minister in any way acted in bad faith in making his decision.

9                     In the course of oral submissions, counsel for the Applicant came eventually to particularise the improper exercise of power ground in the following way. If, which was denied, the Minister, as opposed to the Commonwealth Attorney-General, were the appropriate Minister of State to consider the submission, then, having regard to the nature and purpose of s 672A of the Queensland Criminal Code, the Minister was said not to have taken a relevant consideration into account namely, that the submission made to him, insofar as it sought a reference pursuant to that section, was based on fresh evidence. Related to this was the submission that the Minister had misapprehended the nature and purpose of s 672A. It was further submitted that, in deciding whether to refer the matter in the exercise of his discretion, it was relevant for the Minister to take into account certain hearsay evidence contained in the submission with respect to what was said to be a confession by the complainant that she had falsely accused the Applicant of the offence, even if such evidence might not be able to be considered by the Court of Appeal under s 672A.

10                  Notwithstanding that this precision in respect of the Applicant’s case emerged only belatedly in the course of oral submissions, Mr McLeod, who appeared for the respondents, took the course of neither objecting to the informality with which the grounds of the application came further to be particularised nor of seeking a resultant adjournment. Instead, on behalf of the respondents, he met the case as refined on its merits. Especially given that, at least indirectly, the case touches upon issues which may go to the liberty of the subject, this was the stance one might expect of a model litigant. I record my indebtedness to Mr McLeod for his concise and candid submissions.

11                  In the result then, the issues which have emerged are these:

1.                  Did the Minister have power to make the decision?

2.                  Did the Minister fail to take a relevant consideration into account?

12                  Before turning to these issues it is desirable to set out the statutory provisions of principal concern and to make some observations about the amenability of the decision identified in the application to challenge under the ADJR Act.

Amenability to Judicial Review

13                  Section 672A of the Queensland Criminal Code provides:

672A   Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may—

(a)        refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)        if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.

14                  It is not necessary to set out s 668 - 672 of the Queensland Criminal Code. These provisions are directed to the subjects of appeals against conviction, applications for leave to appeal against sentence, Attorney-General’s appeals, reservation of points of law and references to the Court of Appeal in respect of pre-trial rulings and directions. For the purposes of the Queensland Criminal Code, “Crown Law Officer” is defined by s 1 to mean “the Attorney-General or the Director of Public Prosecutions”. It might further be noted that s 18 of the Queensland Criminal Code provides that nothing in that Code affects the Royal prerogative of mercy.

15                  Section 672A of the Queensland Criminal Code prima facie relates only to State offences and to the Royal prerogative of mercy exercisable in the name of Her Majesty the Queen by Her Excellency the Governor of Queensland in respect of State offences pursuant to s 36(2)(a) of the Constitution of Queensland Act 2001 (Qld). Such application, if any, as this provision of the Queensland Criminal Code has to the Royal prerogative of mercy exercisable by the Governor-General as The Queen’s representative in respect of Commonwealth offences pursuant to s 61 of the Commonwealth Constitution is dependent on the operation of  s 68 of the Judiciary Act 1903 (Cth) (the Judiciary Act).

16                  Subsections 68(1) and 68(2) of the Judiciary Act  provide:

68        Jurisdiction of State and Territory courts in criminal cases

(1)        The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a)        their summary conviction; and

(b)        their examination and commitment for trial on indictment; and

(c)        their trial and conviction on indictment; and

(d)        the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2)        The several Courts of a State or Territory exercising jurisdiction with respect to:

(a)        the summary conviction; or

(b)        the examination and commitment for trial on indictment; or

(c)        the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

17                  The term “appeal” is defined by s 2 of the Judiciary Act to include “an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or judge”.

18                  The High Court has observed of s 68 of the Judiciary Act that it is a “central provision in the administration and enforcement of federal criminal law” which “fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice”: R v Murphy (1985) 158 CLR 596 at 617. To this end, s 68 has been interpreted so as to permit the Commonwealth Attorney-General to appeal against a sentence in respect of a federal offence in circumstances where under State law and in respect of a State offence such a right of appeal was conferred upon a State Attorney-General: Peel v R (1971) 125 CLR 447 (Peel’s Case).

19                  It was uncontroversial between the parties in the present case that a decision under s 68 of the Judiciary Act, in its application of s 672A of the Queensland Criminal Code, not to refer a case to the Court of Appeal was amenable to judicial review under the ADJR Act. Absence of controversy does not, of course, confer jurisdiction. Nonetheless, there is reason, at least in the absence of argument to the contrary, to think that a reasonable basis for the consensus between the parties as to jurisdiction exists.

20                  Peel’s Case and a later decision of the High Court in relation to the operation of s 68 of the Judiciary Act, Rhode v DPP (Cth) (1986) 161 CLR 119 (Rhode’s Case), proved influential in persuading Ryan J in Perrier v Kerr (sued in his capacity as Minister for Justice) (VG  865 of 1995, 17 August 1997, unreported) to accept the correctness of the position adopted by the parties in that case which was that the effect of s 68 of the Judiciary Act 1903 was to grant to the respondent Commonwealth Minister (notably not the Attorney-General), in the context of an application for a pardon in respect of a federal offence, the discretionary power to refer that application to the then Full Court of the Victorian Supreme Court pursuant to s 584(a) of the Crimes Act 1958 (Vic) in like manner to the power granted to the Victorian Attorney-General under that provision in respect of a State offence. There was no issue in that case that only the Commonwealth Attorney-General, as opposed to the respondent Minister for Justice, could exercise the power made applicable by the Judiciary Act.  His Honour also accepted as correct the further position of the parties, which was that the decision of the Minister for Justice not to refer the matter to the Full Court was a reviewable decision for the purposes of the ADJR Act, even though a decision to refuse the granting of a pardon was not.

21                  An assumption that a decision by Queensland’s Attorney-General not to refer a case to the Court of Appeal under s 672A was amenable to judicial review under that State’s analogue of the ADJR Act, the Judicial Review Act 1991 (Qld) (Judicial Review Act), underpins the decision of the Court of Appeal in Pepper v Attorney-General (Qld) (No 2) [2008] QCA 207 (Pepper’s Case). It was held that the State Attorney could not be ordered pursuant to s 38(2) of the Judicial Review Act (an analogue of s 13(4) and (4A) of the ADJR Act) to furnish a statement of reasons for the refusal. The basis for the Court of Appeal’s so holding was not that the State Attorney’s decision was not one to which the Judicial Review Act applied, but rather that it was a decision in the administration of criminal justice and thus, by virtue of the exemption for which s 31(2) and Schedule 2, item 1 of the Judicial Review Act provide, exempt from the statutory obligation to give reasons if requested.

22                  In Eastman v Attorney-General (ACT) (2007) 210 FLR 440 (Eastman v A-G (ACT)), Lander J, sitting as an additional judge of the ACT Supreme Court, after a comprehensive review of authority touching upon the extent, if at all, to which a decision to refuse a pardon was judicially reviewable, expressed the opinion that, while the exercise of the discretion in respect of the prerogative of mercy was not amenable to judicial review, he was “[not] prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review” (at 458-459, [78]). On appeal, it proved unnecessary for the Court of Appeal to explore the correctness of this aspect of his Honour’s reasons: Eastman v Australian Capital Territory (2008) 163 ACTR 29 at 41, [41].

23                  The discretion conferred by s 68 of the Judiciary Act by applying s 672A of the Queensland Criminal Code is a statutory adjunct to a prerogative of mercy. The prerogative forms part of the executive power of the Commonwealth but, as applied by s 68, the power exercised by the Court of Appeal upon a reference under s 672A is an exercise of the judicial power of the Commonwealth pursuant to a conferral of federal jurisdiction on that court for that purpose by s 68(2) of the Judiciary Act. It is consistent with the views expressed by Lander J in Eastman v A-G (ACT) to regard a Ministerial decision as to whether to engage that statutory adjunct as amenable to judicial review even if, as Horwitz v Connor (1908) 6 CLR 38 would bind me to hold, a decision to refuse a pardon is not itself reviewable.

24                  For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister’s decision not to refer a case to the Full Court pursuant to that State’s analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though,  the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision:

1.                  under an enactment, namely s 68 of the Judiciary Act, which rendered applicable s 672A of the Queensland Criminal Code;

2.                  of an administrative character; and accordingly one

3.                  to which the ADJR Act applies.

von Einem v Griffin is, for this reason alone, distinguishable.  Further, as the Court’s jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth.  Though Perrier v Kerr, Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error.

25                  I accept therefore that the decision made by the Minister is one to which the ADJR Act applies and that consequently this court has jurisdiction to review the Minister’s decision to refuse to refer the case to the Court of Appeal. In so doing, it is unnecessary to decide and I refrain from expressing any view as to whether, were the Minister desirous of having the benefit of the opinion of the Court of Appeal on a point arising in the application for a pardon (for which s 672A(b) of the Queensland Criminal Code prima facie provides) a need to read s 68 of the Judiciary Act subject to the Constitution (s 15A Acts Interpretation Act 1901 (Cth)) (Acts Interpretation Act) would prevent the application of that part of the provision to a person who sought a pardon in respect of a federal offence. A concern would be whether that application would be prevented by the prohibition, arising from the interpretation of Chapter III of the Constitution favoured in Re Judiciary and Navigation Acts (1921) 29 CLR 257, against the furnishing of advisory opinions in the exercise of judicial power in federal jurisdiction. That is a subject which may only arise, if at all, in the event not only that the present decision were set aside but the Minister (assuming he is the relevant Commonwealth Minister of State) were disposed to act under s 672A(b), rather than s 672A(a), of the Queensland Criminal Code. The request made by the Applicant in his application and the way it was dealt with by the Minister suggest that it was both intended to be and was treated as one made under s 672A(a) only.

Was the Minister empowered to make the decision?

26                  The Applicant’s argument in respect of this issue was succinct but none the worse for that. There were officers of the Commonwealth whose title corresponded exactly with those State officers named in the definition of “Crown Law Officer” for the purposes of s 672A of the Queensland Criminal Code. That being so, it was submitted that there was no warrant for applying this provision, pursuant to s 68 of the Judiciary Act, “so as [it is] applicable”, to enlarge its application so as to embrace the Minister. To the contrary, it was submitted that, having regard to the sensitivity which might attend the pardoning of a person convicted after a jury verdict and subsequent unsuccessful appeal, the choice in the definition of the Attorney-General and the Director of Public Prosecutions may not have been coincidental representing as it did the Crown’s First Law Officer on the one hand and the senior independent officer holder charged with responsibility for prosecutions.

27                  The Respondent’s argument was rather more elaborate. Its starting point was Ch II of the Constitution. Section 62 of the Constitution makes provision for a Federal Executive Council. In turn, s 64 of the Constitution provides for the appointment of members of the Federal Executive Council as Ministers, “the Queen’s Ministers of State for the Commonwealth”, “to administer such departments of State of the Commonwealth as the Governor-General in Council may establish”. Section 65 then materially provides that those Ministers of State “shall hold such offices … as the Governor-General directs”.

28                  Against the background of these constitutional provisions, the Respondents evidenced the appointment on 3 December 2007 by the then Governor-General of the Minister as a member of the Federal Executive Council and as Minister for Home Affairs charged with the administration of the Attorney-General’s Department. Also evidenced were the Administrative Arrangements made that day by His Excellency which, materially, consigned to the Ministers administering the Attorney-General’s Department the administration of the Judiciary Act.

29                  The Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 403, [17]; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act, which included the administration of s 672A of the Queensland Criminal Code, to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant.

30                  The office of Attorney-General is an ancient one. It evolved because the Sovereign could not appear in person in his courts to plead cases which affected his interests. Hence a need to appear by an attorney: see The Hon LJ King AC, QC, “The Attorney-General, Politics and The Judiciary” (2000) 74 ALJ 444. Conventionally, in relation to the criminal law of a body politic which is a constitutional monarchy, the Crown has the constitutional responsibility for the prosecution of crimes with that prosecutorial function being discharged in the courts on behalf of the Crown by the Attorney-General: R v Wilkes (1768) 4 Burr 2527; 97 ER 123. In more modern times, there has been parliamentary recognition that a need for independence from political considerations in the making of a range of prosecutorial decisions is enhanced by consigning the tasks of making decisions in individual cases and representing the Crown in criminal cases to an official removed from politics; a Director of Public Prosecutions. Nonetheless, Ministerial responsibility for the administration of the criminal law and for the office of a Director of Public Prosecutions, in conformity with convention, is usually consigned to the Attorney-General. It is certainly possible to explain the Queensland Parliament’s definition of “Crown Law Officer” for the purposes of the Queensland Criminal Code by such considerations. That might be thought to support the Applicant’s submission.

31                  Section 68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it “picks up” provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them “so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth”. In so doing, “the adoption of the State law must proceed by analogy”, an observation made by Sir Owen Dixon in Williams v The King [No 2] (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel’s Case (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode’s Case (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.

32                  Proceeding in this fashion in Rhode’s Case and in respect of a Victorian statute authorising the Victorian DPP, “on behalf of Her Majesty”  to appeal against a sentence, Gibbs CJ, Mason J and Wilson J (and separately to like effect Brennan J), identified the Commonwealth Attorney-General as the proper officer to represent the Crown in right of the Commonwealth in the institution of an appeal against sentence in the application, pursuant to s 68 of the Judiciary Act, of the right of appeal in respect of a sentence imposed on a federal offender. That was so even though, by then, the office of Commonwealth Director of Public Prosecutions had been established. The Commonwealth Director of Public Prosecutions’ ability to institute the appeal was held to stem not from the Judiciary Act but rather from s 9(7) of the Director of Public Prosecutions Act 1983 (Cth), which enabled the Director to exercise such rights of appeal as were exercisable by the Attorney-General.

33                  It is significant then for present purposes, though in Rhode’s Case the State provision referred to the State Director of Public Prosecutions and there existed a like Commonwealth official, that the latter was able to exercise a right of appeal in respect of a federal offender’s sentence was resolved by a examination of who was the appropriate officer within the public administration of the Commonwealth to exercise the right, not by an uncritical adoption of whoever had the same title in the service of the Commonwealth.

34                  One asks then, who, by analogy, is the appropriate Commonwealth officer to consider a request for a reference to the Court of Appeal under s 672A in its application pursuant to the Judiciary Act?

35                  Section 672A of the Queensland Criminal Code contemplates that the question of whether or not to refer a case to the Court of Appeal will arise in the context of the consideration of a petition to the Governor for a pardon. In determining how this provision is to be applied by the Judiciary Act by analogy to the Applicant’s case, it is necessary to identify to whom in the Executive Government of the Commonwealth the Ministerial consideration of an application to the Governor-General for a pardon may fall. In this regard, it is not only the Commonwealth Attorney-General who may have Ministerial responsibility for the consideration of such an application. The Minister has also been charged by the Governor-General with the administration of the Department and of the Judiciary Act. Insofar as Ministerial consideration of a pardon application in respect of a federal offender is required, either the Attorney-General or the Minister is the appropriate officer. As an applicable statutory adjunct and in terms of formal Ministerial responsibility, the question of whether to refer a case to the Court of Appeal is just as much a matter for the Minister as it is for the Attorney-General. That is not to say that the Attorney-General and the Minister might not come to an arrangement as to how best to discharge their portfolio responsibilities by, for example, the division between them of various public administration tasks. Here, there is no evidence that they have done that.

36                  A sequel to a decision under s 68 of the Judiciary Act in its application of s 672A of the Queensland Criminal Code may be the initiation by the method of a reference of proceedings in the Court of Appeal. While at first blush it might seem unorthodox that such a proceeding in respect of a federal offence might permissibly be a Minister for Home Affairs’ reference, rather than only an Attorney-General’s reference, that apparent unorthodoxy is really nothing more than a reflection of a failure to appreciate the present adoption of constitutionally permissible practices in the administration of the Executive Government of the Commonwealth.

37                  As already noted, s 68 of the Judiciary Act must be read subject to the Constitution: s 15A Acts Interpretation Act. While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd (1919) 26 CLR 168, O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1, Attorney-General (Cth) v Foster (1999) 84 FCR 582, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 403, [15] – [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth:

For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet.

The concept of administration of departments of State, appearing in s 64, is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.

38                  In “proceeding by analogy” for the purposes of s 68 of the Judiciary Act, constitutionally permissible practices as they are manifested in Commonwealth public administration are not to be ignored. The consigning of the administration of a department of State and enactments to two Ministers is but one such practice. To do otherwise in considering the meaning and effect of s 68 of the Judiciary Act would to be to permit a choice made by a State Parliament with an eye to State practices of public administration unnecessarily to confine the operation of s 68, which is intended by the Commonwealth Parliament to operate “so far as applicable” in the federal criminal jurisdiction.

39                  Such considerations weigh in favour of not confining the operation by analogy of s 672A of the Queensland Criminal Code to federal offenders so as only to authorise Ministerial decision-making by the Commonwealth Attorney-General. Such an outcome also has the advantage, in my opinion, of consistency with the way in which s 19A of the Acts Interpretation Act would operate in the present case were s 672A of the Queensland Criminal Code a Commonwealth parliamentary enactment. That section provides:

19A     References to Ministers and Departments

(1)        If a provision of an Act:

(aa)      refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to; or

(ab)      refers to a particular Minister; then, unless the contrary intention appears, the reference is a reference to:

(a)        if, for the time being, different Ministers administer the provision in respect of different matters:

(i)         if 2 or more Ministers administer the provision in respect of the relevant matter—any one of those Ministers; or

(ii)        if only one Minister administers the provision in respect of the relevant matter—that Minister;

(b)        if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the provision—any one of those Ministers; or

(c)        if paragraphs (a) and (b) do not apply—the Minister for the time being administering the provision.

(2)        Where an Act refers to a Minister, specifying the Minister merely by reference to the fact that the Minister administers a specified Act or enactment, subsection (1) applies as if references in paragraphs (1)(a), (b) and (c) to the provision were references to the specified Act or enactment.

(3)        Where a provision of an Act refers to a Department, using the expression “the Department” without specifying which Department is referred to, then, unless the contrary intention appears, the expression means:

(a)        if, for the time being, different Ministers administer the provision in respect of different matters—the department of state of the Commonwealth that:

(i)         deals with the relevant matter; and

(ii)        is administered by the Minister or Ministers administering the provision in respect of that matter; or

(b)        in any other case—the Department of State of the Commonwealth that:

(i)         deals with the matters to which the provision relates; and

(ii)        is administered by the Minister or Ministers for the time being administering the provision.

(4)        For avoidance of doubt, it is declared that where:

(a)        a provision of an Act is administered by 2 or more Ministers; and

(b)        by virtue of this section, the provision requires or permits anything to be done by or in relation to any one of those Ministers;

the provision shall not be taken to require or permit it to be done in any particular case by or in relation to more than one of those Ministers.

40                  For these reasons, I conclude that it was lawfully possible for the Minister to decide whether or not to refer the case to the Court of Appeal for the purposes of s 68 of the Judiciary Act in its application of s 672A of the Queensland Criminal Code.

Failure to take a relevant consideration into account?

41                  For the purposes of the particular improper exercise of power error ground specified in s 5(2)(b) of the ADJR Act, where a statute confers on an official a discretionary power to make a decision, a consideration will be a “relevant consideration” in relation to the making of that decision if it is one which by that statute the official is bound to take into account either expressly or by necessary implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 1 at 39-40.

42                  The Applicant submitted that s 672A did not authorise the Minister to act as a “gatekeeper”, second guessing what the Court of Appeal might make of fresh evidence. The submission allowed that the Minister might refuse to refer an application which was obviously frivolous but that it did not authorise the ignoring, as was submitted had occurred, of the evidence submitted with the application to the Minister.

43                  The Respondents submitted that s 672A of the Queensland Criminal Code does not expressly specify any criteria as relevant to the exercise of the discretionary power for which that section provides, such that the scope of the discretion was unconfined save insofar as the subject matter, scope and purpose of the section dictated otherwise. So much may be accepted but it rather begs the question as to what is dictated by the subject matter, scope and purpose of s 672A? To answer this question it is necessary to consider in some detail authorities concerning s 672A and its analogues.

44                  In Mallard v The Queen (2005) 224 CLR 125 (Mallard’s Case) at [4] Gummow, Hayne, Callinan and Heydon JJ observed of the Western Australian equivalent of s 672A:

[4]        Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

45                  Section 672A was described by Muir JA, de Jersey CJ and Fraser JA agreeing, in Pepper’s Case, [2008] QCA 207 at [11], as “a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal”. His Honour further stated (at [12]), “The issue to be determined by the Court of Appeal in considering a matter referred under s 672A(a) is the same as that falling for resolution on an appeal, namely whether there has been a miscarriage of justice”.

46                  Further insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162, and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed:

It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579.

…

[The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen (2005) 214 ALR 1.

47                  The “broader discretion” to which Keane JA refers in the passage quoted is a discretion possessed by the Court of Appeal on a reference under s 672A to receive and consider evidence even if that evidence might, by the exercise of due diligence, have been produced at the trial: The Queen v. Young (No 2) [1969] Qd R 566 at 571. In the latter case (ibid), the Queensland Court of Criminal Appeal also confirmed a view which had been expressed in an earlier, unreported decision of that court to the effect that, because on a reference under s 672A the court sat judicially, not as an adjunct of the executive, it could only receive admissible evidence. I take that to mean that, though the referral discretion is an adjunct to an administrative power, if the discretion is exercised in favour of a reference the resultant proceeding in the Court of Appeal is judicial in character.

48                  Mallard’s Case is also important for present purposes because of the emphasis given (at [10]) by Gummow, Hayne, Callinan and Heydon JJ in their joint judgment to the need for an appeal court on a reference under s 672A(a) to adhere to the letter and spirit of the words “the whole case” when determining a reference:

[The] explicit reference to "the whole case” conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant.

49                  The test to be applied by a court upon a reference under s 672A(a) and its analogues in deciding whether to set aside a conviction on the ground of fresh evidence is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen (1988-1989) 167 CLR 259 at 273 per Mason CJ (Mickelberg).  That test, as Mason CJ noted in Mickelberg, is derived from views expressed by four of the judges in Gallagher v The Queen (1985-1986) 160 CLR 392 (Gallagher). Of these, it is worthy of note in the present context that, in so concluding as to the nature of the relevant test, Gibbs CJ observed (at 399) that, “it is too severe, and indeed speculative, a test to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so.” Also worthy of note in the present context is a further observation of Mason CJ in his judgment in Mickelberg (at 272) in respect of the reference in that case that it indicated “the existence of public concern about the propriety of the convictions”.

50                  It is one thing to set aside a conviction upon such a reference applying this test but, having done so, quite another to order the entry of a verdict of acquittal, as opposed to ordering a new trial.  To order the former is to usurp a function ordinarily consigned to a jury under our system of criminal justice in respect of offences prosecuted on indictment. A discretion exists, but ordinarily an appellate court would exercise it against the entry of a verdict of acquittal unless it had held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe: Dyers v The Queen (2002) 210 CLR 285 at 297, [23] per Gaudron and Hayne J and at 331, [134] per Callinan J, cf at 316-317, [86]-[90] per Kirby J; see also Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 at 577 per Kelly SPJ and at 591 per Dowsett J, cf at 585-588 per Thomas J.

51                  Drawing these threads together, it follows, in my opinion, that it was relevant for the Minister, when considering an application requesting a reference under s 672A of the Queensland Criminal Code, to consider whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the Applicant. Not to consider such evidence at all or to fail to evaluate it by reference to such a test would, in my opinion, be to fail to take into account considerations made relevant by the subject matter, scope and purpose of s 672A. Were the evidence presented not, strictly speaking, “fresh”, as opposed to “new”, that circumstance would not, in itself, warrant a Minister to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence.

52                  Further, it seems to me to follow from the role consigned to the Court of Appeal on a reference under s 672A that it is no part of the role of the Minister, in deciding as a matter of discretion whether to refer a case himself, to apply a test to the whole of the case, including the new evidence, higher than that which the court would itself apply in evaluating the case were it to be referred.

53                  The existence of a discretion undoubtedly means that a convicted offender has no right to the reference of his case. That the reference power is discretionary indicates that it was contemplated that the Minister would make some evaluative judgment as to whether a reference ought to be made but not in so doing usurp the role that was consigned to an appeal court in the event of a reference. In this sense, the Minister is a “gatekeeper” who has a role in ensuring that the public interest in the administration of justice as furthered by the efficient allocation of judicial resources is not subverted by the referring of cases to the Court of Appeal which must inevitably fail. That the Court of Appeal on a reference itself had power to disregard grounds which it considered frivolous would not, in my opinion, prevent a Minister from refusing to refer a case where there was neither any new evidence nor even a ground of challenge not previously adversely considered, but care would need to be taken not to treat as frivolous a reasonable argument with which the Minister happened to disagree.

54                  Such considerations would not be exhaustive of matters to which the Minister might, without committing the error of taking into account an irrelevant consideration, advert in deciding whether or not to refer a case. Because, in making the decision, the Minister acts administratively, he might take into account material which would not be admissible on the consideration of a reference by the Court of Appeal. Thus, as for example, Mason CJ apprehended in his judgment in Mickelberg, he might note public concern as to the propriety of the conviction. His sources of information in this regard might, for example, be reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant or other information in an application for a pardon which did not constitute admissible evidence which could be considered by an appellate court on a reference. None of these would though be considerations that he was obliged to take into account, ie “relevant considerations”.

55                  These conclusions are, in my opinion, consistent with conclusions reached by Lander J as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 at 138-140 concerning the analogous reference power upon the assumption (contrary to the conclusion he reached) that the South Australian Attorney’s decision to decline a reference request was amenable to judicial review. His Honour stated:

Judicial review would only be available to review the decision whether or not to exercise the discretion and then the subsequent exercise of that discretion to determine whether the exercise of the discretion conformed with the policy scope and objects of the Act.

What, then, is the policy or scope and objects of s369. The section has no application unless a petition for mercy has been presented to the Governor. It therefore assumes that the Petitioner has exhausted all of his or her legal rights and that all appeals have been exhausted and the conviction and the sentence must stand according to law.

The section further assumes that there may be circumstances, notwithstanding that all appeals have been exhausted, where it would be appropriate to refer this matter back to the Court for further hearing as an appeal. In that respect the section perhaps contemplates that fresh evidence has emerged which might make the conviction unsafe or unsatisfactory. It also contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction.

The policy, purpose and object of s369 is to ensure, so far as practicable, that no person is the victim of a miscarriage of justice.

The section has been included to allow for circumstances of the kind to which I have referred so that even if a person has exhausted all that person's rights of appeal, that person will not be the victim of a miscarriage of justice, if later circumstances show that the conviction should not stand for any reason including that it is unsafe and unsatisfactory.

It is within that policy and purpose that the Attorney General must act. When a petition is presented to the Governor and referred to the Attorney General apart from advising on the question of mercy, generally, the policy and purpose of s369 is to have the Attorney General apply his mind as to whether or not it would be appropriate to invoke the Court's jurisdiction yet again, notwithstanding that the appeal process has been exhausted, so that the Court may determine whether, in any way, there has been a miscarriage of justice in relation to that petitioner.

The policy and purpose of this section is to require the Attorney General to apply his mind as to whether it would be appropriate to refer the matter to the courts in either of the ways mentioned in s369 in case there has been a miscarriage of justice.

Any matter relevant to the policy, scope or objects of the section.

…

Did The Attorney General Apply The Correct Legal Test?

In considering the matters raised in the petition the Attorney had to adopt a criterion to determine whether the material provided could give rise to the invocation of either of the powers contained in s369.

He was advised that unless the material referred to in the petition raised a sufficient doubt about the correctness of the decision the appropriate response was to advise His Excellency that it was not proposed to take any further action in respect of the petition. In considering whether the material raised in the petition raised a sufficient doubt about the correctness of the decision he was further advised that the material would not raise such a doubt unless it appears reasonably possible that a miscarriage of justice has occurred.

The Attorney General accepted that advice and on the evidence acted upon the criterion to the extent, that unless the material disclosed the reasonable possibility of a miscarriage of justice his proper response was to advise His Excellency to take no further action upon the petition.

The plaintiff complained about the test adopted by the Attorney General which he said amounted to a misunderstanding of the legal principles involved in exercising his discretion under this section. Initially the plaintiff argued that the adoption of such a test was an error of law, but I think that it was otherwise said that the criterion adopted was so unreasonable that no sensible person could have adopted the test.

If the matter had come before a judge of this Court, after conviction and sentence, for the purpose of obtaining leave to appeal to the Full Court of the Supreme Court, then the test which would have been applied by that judge was whether the ground or grounds of appeal, raised on the application for leave to appeal, were arguable. The plaintiff argued, on this application, that that is the test which the Attorney General should have asked himself in relation to the matters raised on the petition. It was said that to approach the matter any other way amounted to an error of law and was so unreasonable that no sensible person could have adopted the test.

Of course, the proposition that a ground of appeal is arguable begs the question: Arguable in what sense? It must be arguable that there has been a miscarriage of justice.

It is right, I think, as Mr Abbott submitted, that a single judge in this State will grant leave to appeal from a conviction or sentence if that judge is satisfied that it is arguable there has been a miscarriage of justice.

The practice book in this State (Criminal Law South Australia, Butterworths; Judge Lunn) states at para 7115.3:

"The test for leave is whether it is at least arguable that the exercise of the trial judge's discretion has miscarried or there could be any real element of injustice to the appellant if leave was refused; McDonald v R (1992) 85 NTR 1."

In McDonald v R,Asche CJ relied upon a decision of the Full Court of the Supreme Court of Victoria in R v Broadway (1957) VR 398 and concluded that on an application for leave to appeal the appropriate test should be 'at least an arguable case' (at 3).

Asche CJ, however, accepted that it was inappropriate in applications for leave to appeal to lay down rigid and exhaustive criteria. He suggested that another test could be 'that some possible though real element of injustice might be thought to occur if leave were refused' (at 4).

He said that the purpose of a provision requiring leave to appeal is to discriminate between the obvious cases where it is clear that the appeal cannot succeed and to allow the others to go forward.

Accepting the decision in McDonald v R and the matters to which Asche CJ has referred, it cannot be said that the criteria for granting leave to appeal is necessarily appropriate in determining whether or not a matter should be referred to this Court pursuant to either of the limbs of s369.

There is a point of distinction between an application for leave to appeal and a reference under s 369. A matter which is being considered by the Attorney General under s 369 has already been the subject of appeal and all of the rights of appeal have already been exhausted.

In any event, it is not self evident to me that the test that it is arguable that there was a miscarriage of justice is any less onerous than the test asked by the Attorney General of himself, i.e. whether there was a reasonable possibility of a miscarriage of justice. It seems to me that the tests, in a sense, ask the same question. A point will not arguably show that there has been a miscarriage of justice unless there is a possibility that there has been a miscarriage of justice and, of course, that possibility must be reasonable.

56                  What then of the Minister’s consideration of the Applicant’s request for a reference?

57                  To answer that question first requires an understanding of the case made against the Applicant at his trial, of the defence case and of the basis upon which his appeal against conviction to the Court of Appeal failed. These matters are comprehensively canvassed in the judgment of McMurdo P (with whom Holmes JA and Cullinane J agreed) in the disposal by the Court of Appeal of the Applicant’s appeal against his conviction: R v Martens [2007] QCA 137. It would only add unnecessarily to the length of these reasons to recite all of what is there stated. Some matters, salient in light of the present proceeding, should be recorded.

58                  That the complainant was under 16 years of age at the time of the alleged offence was uncontroversial, as were the facts that the Applicant was an Australian citizen and that he and the complainant were at least on some days, each in Port Moresby between the dates alleged in the indictment. Whether the offence was proved depended very much upon an evaluation by the jury of whether the complainant was to be believed in her account that the Applicant had intercourse with her while they were in Port Moresby. Her evidence was that she had twice flown to Port Moresby with the Applicant in 2001, firstly in March for the purpose of securing a passport to be used by her in later travelling to Australia for educational purposes and secondly, so she said, on a school day after her birthday (10 September) but before Papua New Guinea’s Independence Day (16 September), the 2001 celebration of which in Port Moresby she stated she attended.

59                  At the trial the Applicant mounted a concerted challenge to the complainant’s credibility. His evidence was that there had been but one flight to Port Moresby with the complainant as his passenger. According to him, it was this trip which was made for the purpose of the completion of the complainant’s passport application. Apart from his oral evidence to this effect he produced his pilot’s log book in which was recorded but one trip to Port Moresby with the complainant, on 10 August 2001. A passport photograph of the complainant endorsed on the reverse with the date 16 August 2001 and a related photographic laboratory receipt dated 11 August 2001 featured in the defence case. The evidence tendered by the prosecution included the complainant’s passport which was issued on 24 August 2001.

60                  In her judgment on the appeal McMurdo P observed, inter alia:

(at [49])    The jury were entitled to find on the evidence I have set out in some detail that the complainant and her parents were truthful and reliable in recounting her two visits to Port Moresby with the appellant. In order to be satisfied of the appellant's guilt, it was not necessary for the jury to be satisfied beyond reasonable doubt that the complainant had her passport photo taken in Port Moresby in March rather than August. Indeed, the preponderance of evidence favoured a finding that the photograph was taken in mid-August 2001. The jury were entitled to accept that the complainant was confused as to the date of the passport photographs, especially as she was young, unsophisticated and was not asked to recall these details for some years. This did not, however, compel them to find that she was not truthful about the later crucial events around mid-September 2001.

(at [53])    Although the appellant's evidence contradicting the complainant received apparent support from the log book, the jury were not compelled to accept that as an accurate and independent record of all his flights in all his planes at the relevant period from the complainant's village in Western Province to Port Moresby. It was a record made by the appellant apparently required to be kept by the Australian, not the Papua New Guinean, government. It commenced on 26 June 1998 and related to a "P.A.-31" aircraft. It contained the note "Rotary wing in separate log book". There was no independent entry until a biennial flight review stamp dated 28 March 2003, long after the disputed September 2001 flight. The log book did not compel the jury to have a doubt about the complainant's evidence that she had sexual intercourse with the appellant in Port Moresby after her 14th birthday on 10 September 2001 but before her country's national day on 16 September 2001.

61                  Counsel for the Applicant highlighted in his oral submissions that the material furnished by the Applicant to the Minister included the following further evidence:

(a)                A statutory declaration from Naomi Katu Kalana, who places the complainant in Port Moresby in August 2001 for the purpose of securing documents to allow her to travel to Australia for educational purposes. She also attests to the Applicant’s estranged wife’s accusation to her that the Applicant was having an affair with the complainant and to an absence at that time of any adverse comment concerning the Applicant by the complainant. Naomi Katu Kalana also attests to having again seen the complainant in Port Moresby in September 2001, lastly on 14 September. There is no reference in the statement to any complaint to her by the complainant concerning the Applicant’s behaviour.

(b)               A statutory declaration from Willie Kalana, which is to like effect to that of Naomi Katu Kalana.

(c)                A statement made in a letter dated 14 August 2007 sent by Detective Chief Inspector Wellsh, Officer in Charge, National Criminal Records/Interpol Royal Papua New Guinea Constabulary that on 12 September 2001, at the urgent request of the Applicant and the complainant, who each attended upon him at his office in Port Moresby for that purpose, he had supplied a police clearance certificate in respect of the complainant to her.

(d)               An affidavit from Tahuni Tapari who also places the complainant in Port Moresby in August and September 2001, last seeing her there on 20 September 2001. Mrs Tapari also corroborates an account which the Applicant gave of having had an argument with two named individuals about air fares when he attended at Mrs Tapari’s residence (where the complainant was then staying) for the purpose of flying her back to her family home in the Western Highlands. According to Mrs Tapari, the complainant declined the offer of a flight home because she wanted to stay in Port Moresby for the Independence Day celebrations.

(e)                Extracts from Papua New Guinea Civil Aviation Authority (PNGCAA) aero charges records which, together with a statement from an employee of that authority, Mr Paul Kafali, were capable of being regarded as corroborating entries made by the Applicant in his pilot’s log book.

62                  Save for the PNGCAA material, none of this evidence is expressly referred to by the Minister either in his letter of 4 September 2008 or in the appended reasons. Only the PNGCAA material and Mrs Tapari’s statement are expressly referred to in the Applicant’s solicitors’ final submission to the Minister in their letter of 12 August 2008.

63                  In his letter and in the appended reasons the Minister dealt with both the application for a pardon as well as the related request for the case to be referred to the Court of Appeal pursuant to s 672A of the Queensland Criminal Code as applied by s 68 of the Judiciary Act. The following extract contains those parts of the Minister’s letter which seem to relate to his decision not to refer the case to the Court of Appeal:

…

I have considered the application dated 5 March 2008, the addendum to the application dated 5 June 2008, comments from the Commonwealth Director of Public Prosecutions, Australian Federal Police, Department of Immigration and Citizenship and your letter dated 12 August 2008 responding to the adverse comments in this matter.

As you are aware, different tests are applied to pardon applications and applications under section 672A of the Queensland Criminal Code.  In considering these applications, I take account of the separation of powers doctrine, which establishes a clear boundary between the roles of the executive and judiciary.  The determination of guilt or innocence is wholly and properly a matter for the usual court process, other than in limited circumstances.  I therefore require the presentation of fresh evidence not considered at trial or on appeal before an application will succeed.

…

No criteria are specified in section 672A to guide my decision. I consider it appropriate to refer a case to the Court of Appeal where the material presented raises a doubt or question about the conviction or sentence.

…

The evidence presented also fails to raise a doubt or question about the conviction or sentence imposed upon you.  The majority of the claims raised in the application were considered at trial or on appeal.  In the absence of fresh and compelling evidence casting doubt on your conviction, paramount weight must be placed on the decision of the court.  As the further evidence provided in the application was not fresh or compelling it does not warrant further consideration of this case by the Court of Appeal.

I attach a more detailed summary of the reasons for my decision

The attached reasons are in the following terms:

Frederick Martens – Reasons for decision

Ground 1 – Mr Martens was not in Port Moresby on Friday 14 September 2001

·                     The trial judge clearly instructed the jury that it only needed to be satisfied that sexual intercourse occurred between Mr Martens and [the complainant]between 10-16 September.  The evidence at trial, including [the complainant’s] evidence that the offence occurred on a Friday, was weighed by the jury in deciding whether the indictment was proved.

·                     The information in the log book is the same as that in the document from the Papua New Guinea Civil Aviation Authority (PNGCAA).  It is therefore not ‘new evidence’ as the information was before the jury when it considered the case.

Ground 2 – There was only one trip to Port Moresby in 2001

·                     None of the arguments raised are relevant to whether Mr Martens committed the offence during a trip in September 2001.

·                     Even without the material provided in the application, the jury seems to have been well aware that the defence questioned the accuracy of [the complainant’s] evidence and argued that the trip actually occurred in August 2001.

Ground 3 – The Australian Federal Police (AFP) gave misleading information about Frederick Martens’ travel movements in April 2001

·                     The affidavit was not used at trial and was only relied upon at the bail hearing.  It therefore had no bearing on the jury’s decision.

·                     Any concerns about the missing movement record could have been raised at trial or on appeal.

Ground 4 – The AFP suppressed evidence of the Aerocharge invoice and [the complainant’s] passport form

·                     In relation to the Aerocharge invoice, it appears the AFP and Royal Papua New Guinea Constabulary (RPNGC) had no reason to question the advice form the PNGCAA that there were no available records.  There is no evidence that the AFP or RPNGC had knowledge of the record at the time and suppressed it.

·                     There is no evidence that the passport form was suppressed, especially as the RPNGC provided a statement on 20 July 2005 stating that the form had been located.

Ground 5 – Conspiracy to fabricate allegations against Frederick Martens

·                     The evidence relied on in the application to establish a conspiracy existed has either subsequently been discredited or does not clearly demonstrate there was a conspiracy to frame Mr Martens.

·                     The generalised allegations of conspiracy do not undermine the reliability of any of the substantive evidence presented to the jury on which the conviction was based.

Ground 6 – Separate charges about a second girl, …, have subsequently been withdrawn

·                     This has no relevance to considering whether Mr Martens is innocent of the offence against [the complainant].

·                     The fact that a person is not convicted of a second offence is not evidence that they must have been wrongly convicted of a first offence.

64                  Any consideration of the Minister’s reasons must commence from the premise that they are meant to inform and are not to be read narrowly or zealously with an eye for error upon judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Further, and with all due respect to its author, the Minister was confronted with an application which, even as it came to be amplified, was diffuse and, as the title “corrupt prosecution” might suggest, attended with large claims about a course of conduct in respect of the Applicant allegedly involving agencies here and in Papua New Guinea tantamount to a conspiracy to pervert the course of justice. The Minister’s reasons take the form in which they appear because of an evident endeavour by him and those advising him to engage in an orderly way with the Applicant’s application. I do not underestimate the difficulty which that presented in the circumstances.

65                  The “conspiracy” aspects of the submission made to the Minister were supported by hearsay accounts of varying degrees of remoteness from various persons. Another part of Mrs Tapari’s statement had such material in it. It is not necessary for the purpose of deciding this judicial review application to refer in detail to that part of her statement or to other hearsay accounts. The Minister could, in my opinion, have taken these into account in deciding whether or not to refer a case, but he was not bound so to do. In the form presented, this material did not constitute evidence to which the Court of Appeal might advert upon its consideration of the whole of the case. Likewise, the withdrawal of a separate charge in respect of a complaint by another person had nothing to do with whether there existed further evidence warranting a reference to the Court of Appeal. Grounds 3, 4, 5 and 6 of the Minister’s reasons relate to these aspects of the application. Of the attached reasons, only grounds 1 and 2 appear to relate to the request for a reference under s 672A.

66                  In my respectful opinion, the Minister’s reasons demonstrate that he has applied an overly rigorous test in deciding whether or not to refer the case to the Court of Appeal. Of particular concern is the following passage:

In the absence of fresh and compelling evidence casting doubt on your conviction, paramount weight must be placed on the decision of the court.  As the further evidence provided in the application was not fresh or compelling it does not warrant further consideration of this case by the Court of Appeal. [Emphasis added]

67                  Having regard to what was said in Mickelberg and Gallagher, described above, as to the basis upon which an appellate court on a reference will set aside a conviction, the words emphasised overstate the position. Evidence which is “fresh and compelling” may very well persuade an appellate court not only to set aside a conviction but also not to order a retrial and perhaps to order the entry of an acquittal. However, to secure the setting aside of a conviction, it is enough that the appellate court, considering the case as a whole, concludes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

68                  It is true that, earlier in his reasons, the Minister expresses the opinion that, “I consider it appropriate to refer a case to the Court of Appeal where the material presented raises a doubt or question about the conviction or sentence.” Read in isolation, that might be thought to posit a test not materially different to that adopted in Mickelberg and Gallagher. As to that though, the Minister is not performing the function of an appellate court, only exercising a discretion as to whether or not there is a case which warrants referral to such a court. His role is to determine whether the applicant has presented a case in which it is reasonably arguable that an appellate court, applying the test in those cases and upon a consideration of the whole of the case, would set aside the conviction. That is a lesser threshold.

69                  Read in the context of the Minister’s letter and attached reasons as a whole, his concern that the evidence needed to be “fresh and compelling” seems to be derived from an apprehension that to decide to refer a case on any lesser basis would be to transgress the “separation of powers doctrine, which establishes a clear boundary between the roles of the executive and judiciary”. I take that to mean that the Minister conceives that, absent such evidence, to refer a case would be for the executive to subvert the finality of a jury verdict followed by an unsuccessful appeal against conviction. With respect, it does no such thing. Properly understood, what the Minister does in deciding to refer a case under s 672A(a) of the Queensland Criminal Code is to consign to the judicial branch of government the task of determining whether or not, having regard to the whole of the case, including the new evidence presented to the Minister, a miscarriage of justice has occurred. On such a reference it is judicial power which is exercised. If the Court of Appeal decides to set aside the conviction and to order a new trial, that new trial will, necessarily, having regard to s 80 of the Constitution, again be conducted before a jury. It, too, will be an exercise of judicial power. It is not the Minister’s decision to refer a case which sets aside the earlier exercise of judicial power, but rather a consequential exercise of judicial power, sanctioned by Parliament, following a conclusion on the whole of a case that a miscarriage of justice has occurred, that yields an order setting aside the earlier conviction.

70                  Strictly speaking, in a circumstance where a request for a pardon and a reference under s 672A was accompanied by “fresh and compelling evidence” calling into question the guilt of a federal offender, the Minister might permissibly and as a matter of discretion decline the request for a reference and instead advise the Governor-General that it was appropriate to pardon the offender. Equally though, save in the clearest of cases and especially where the alleged offence had been the subject of public disquiet, the Minister might very well conceive that public confidence in the administration of justice was best served by referring the case to the Court of Appeal even though he regarded the evidence as both fresh and compelling. In that context, one consideration might well be, for example, that, even though it seemed inevitable on a, however misconceived, reference that a verdict of acquittal would be ordered, this was preferable to a perception, flowing from the direct granting of a pardon, that the executive branch had interfered with an earlier judicial outcome. Yet further, the Minister might, in a particular case, conceive that it was anomalous for a pardon to be granted, which would leave intact the earlier finding of guilt, as opposed to affording an applicant possessed of fresh and compelling evidence the opportunity of securing the entry of a verdict of acquittal.

71                  All of these are but contingencies which on particular facts might fall for the evaluative judgment of the Minister in relation to an application for a pardon and associated request for a reference. I mention them so as to underscore that which, with respect, I perceive to be an unwarranted ministerial inhibition, based on a misunderstanding of the effect of a ministerial decision to refer a case. A decision in an appropriate case to refer the case to the Court of Appeal does not violate the separation of powers; to the contrary, it defers to that separation in a way contemplated by Parliament.

72                  Another concern arises from the following passages in the Minister’s reasons, “The majority of the claims raised in the application were considered at trial or on appeal” and, in respect of “Ground 2”, “Even without the material provided in the application, the jury seems to have been well aware that the defence questioned the accuracy of [the complainant’s] evidence and argued that the trip actually occurred in August 2001.” So much may be accepted, but those claims were not considered against the additional background of the further evidence provided by the Applicant in his application to the Minister. Immediately after the passage from the joint judgement of Gummow, Hayne, Callinan and Heydon JJ in Mallard’s Case(at [10]) which I have quoted above (at para 48) their Honours further observe:

That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code. [Emphasis added]

73                  Paragraphs [49] and [53] of the judgment delivered by McMurdo P in the Applicant’s unsuccessful appeal, quoted above, highlight that evidence which the complainant and the Applicant gave at the trial as to the number of flights undertaken with each other, when and for what purpose, were before the jury to evaluate in an assessment of the their respective credibility and on the then state of their and other evidence. What was not before the jury or the Court of Appeal was the further evidence which formed part of the Applicant’s submission to the Minister. Further, para [53] of the judgment also shows that the absence of contemporary corroboration of the Applicant’s log book entries was recognised as a factor which need not have compelled the acceptance of the veracity of those entries. On a reference under s 672A that on the Applicant’s earlier appeal the log book had been dealt with in this fashion might, when considering the whole of the case, which would include the PNGCAA material, be thought to raise a stronger interrogative note concerning the relative credibility of the Applicant and the complainant. The enhanced corroboration of other aspects of the Applicant’s account of events offered by the other evidence might perhaps also be similarly viewed. Be this as it may, what can be said, having regard to this further observation in Mallard’s Case, is that in deciding whether or not there is a reasonably arguable case advanced that on a reference an appellate court would conclude that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant, it does not follow that because, having regard to the then state of the evidence, an appeal against conviction was dismissed, like claims made against a broader evidentiary background must necessarily meet the same fate. The passage quoted from the Minister’s reasons evidences a misunderstanding of the role of the Court of Appeal on a reference under s 672A.

74                  Of course, as McMurdo P was astute to point out in her judgment, the question before the jury at the Applicant’s trial was not whether or not the complainant was mistaken as to the number of flights to Port Moresby she undertook with the Applicant, when and for what purposes. It was whether the Crown had proved beyond reasonable doubt on admissible evidence that the Applicant had committed the offence charged. Nonetheless, an assessment as to whether the offence had been so proved very much depended in the circumstances of this case on questions of credibility. What the Minister has not considered is whether on the whole of the evidence, as it now stands, the Applicant has presented an arguable case on the authorities for the setting aside of the conviction.

75                  A further concern is that the Minister has been dismissive of the Applicant’s request for a reference on the basis that the evidence was not “fresh”. Having regard to what was said in Daly’s Case, Condren’s Caseand Mallard’s Case, that new evidence contained in a request for a reference under s 672A might have been obtained with reasonable diligence prior to trial and therefore not strictly “fresh” does not mean that the Court of Appeal on a reference could not receive it as a matter of discretion. It is not even evident from the Minister’s reasons whether, in referring to an absence of fresh evidence, the Minister is using “fresh” to mean that, though “new”, it was evidence that might have been obtained with reasonable diligence prior to trial.

76                  Such analysis as there is in the Minister’s reasons of the particular evidence which accompanied the submission to him displays a misunderstanding of what amounts to “evidence”, be it “new” or “fresh”, as the following passage in respect of “Ground 1” reveals:

The information in the log book is the same as that in the document from the Papua New Guinea Civil Aviation Authority (PNGCAA).  It is therefore not ‘new evidence’ as the information was before the jury when it considered the case.

The subjects of when flights were undertaken and with whom were before the jury. At the trial, evidence on that subject came, inter alia, from the Applicant’s oral testimony, that of the complainant and from the Applicant’s log book. The PNGCAA documentation was evidence, was at least “new” and was never before the jury. These errors aside, the passage quoted is underpinned by the premise, erroneous on the authorities, that, because a subject was before a jury, that means that, faced with new evidence touching on that subject, an appellate court on a reference cannot hold, on the whole of the case, that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the “fresh” or “new” evidence been before it.

77                  This error, coupled with the absence in the Minister’s reasons of any reference to any of the other new evidence that accompanied the Applicant’s submission, leads me to doubt whether that has truly been taken into account. For it, too, touches upon subjects that were before the jury at the trial. That doubt is not assuaged by an absence of any reference to, much less analysis of, this evidence in the submission directed to the Minister by the Department, which is in evidence.

78                  For these reasons then my conclusion is that the improper exercise of power ground as it came to be particularised has been made out. The Minister has failed to take into account the relevant consideration that the Applicant’s submission was accompanied by evidence, be it “fresh” or “new”, which was receivable on a reference under s 672A(a) of the Queensland Criminal Code.  Further, in so doing, he has, in the ways identified, misconceived the nature and purpose of the discretion vested in him and of the role consigned to the Court of Appeal upon such a reference.

79                  Insofar as he has decided not to refer a case under s 672A, the Minister’s decision of 4 September 2008 must be set aside and the matter remitted to him for further consideration according to law. Obviously enough, that the Applicant is presently in custody makes it desirable that any such reconsideration occur as soon as reasonably possible.

80                  The Applicant’s counsel sought the following further orders:

(a)                that the matter be referred to the Court of Appeal;

(b)               that the Minister instruct counsel briefed to appear for the Crown on the reference to consent to the quashing of the conviction, an order for retrial and the admission of the Applicant to bail on his own undertaking pending that retrial.

81                  No case was cited as authority for the existence of a power to make such orders and none of any worth could be. For such orders are quite beyond the powers granted to the Court under s 16 of the ADJR Act. They are most certainly not, contrary to the Applicant’s submission, authorised by s 16(1)(d) of that Act. To make such an order would be fundamentally to violate the role of a reviewing court on judicial review, qv Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 at 35-36.

Associate:

Dated:         6 March 2009