FEDERAL COURT OF AUSTRALIA

Ogawa v Attorney-General (No 2) [2019] FCA 1003

ORDERS

THE COURT ORDERS THAT:

1.    In relation to so much of the respondent’s decision of 20 March 2018 as entailed deciding not to make a favourable recommendation to His Excellency the Governor-General in relation to a request by petition by the applicant for the granting of a pardon to her, IT BE DECLARED THAT:

(a)    The exercise of the power under s 61 of the Constitution to grant, in the exercise of the Royal Prerogative of Mercy, a pardon is not, by convention, limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence but is a flexible power the exercise of which may be adapted to meet the circumstances of the particular case.

(b)    The applicant is not precluded by the respondent’s decision of 20 March 2018 from lodging a further petition seeking the granting to her of a pardon, nor is the respondent precluded by that decision from making a recommendation to His Excellency the Governor-General that she be granted a pardon.

2.    In relation to the respondent’s decision of 20 March 2018 not to refer the applicant’s case in relation to her convictions for offences of using a carriage service to make a threat to kill contrary to s 474.15(1) of the Criminal Code (Cth) (Criminal Code) and using a carriage service to menace, harass or cause offence contrary to subs 474.17(1) of the Criminal Code to the Queensland Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld), as applied by s 68 of the Judiciary Act 1903 (Cth):

(a)    A writ of certiorari issue quashing the decision; and

(b)    A writ of mandamus directed to the respondent issue requiring that the respondent consider the applicant’s request for the referral of her case according to law.

1.    The respondent pay the applicant’s costs of the proceeding, which are fixed as to travel expenses in the amount of $250, and as to printing costs in the amount of $250, making for a total of $500, together with such filing or other fees as have been paid by the applicant. As to the filing fees, the respondent is to pay such amount thereof as is certified by the Registrar to have been paid by the applicant in respect of this proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

The quality of mercy is not forced.

It drops as freely as the rain from heaven

Upon the place beneath: it is twice blest;

It blesses him that gives and him that takes:

It’s mightiest in the mightiest: it becomes

The reigning monarch better than his crown;

His sceptre shows the force of temporal power,

Which thus inspires the dread and fear of kings;

But mercy is above this sceptered sway;

It is an attribute of God himself;

And earthly power is most like to God’s

When mercy seasons justice.

Merchant of Venice Act VI, Scene I

1    Megumi Ogawa has attained the academic distinction of the degree of Doctor of Philosophy in Law. Dr Ogawa also has the more dubious distinction of having been convicted and, on 27 March 2009, sentenced by the District Court of Queensland to four concurrent terms of six months’ imprisonment, for two counts of using a carriage service to make a threat to kill contrary to s 474.15(1) of the Criminal Code (Cth) (Criminal Code) and for two counts of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code. The District Court directed that the terms of imprisonment commence on 27 May 2009 and that Dr Ogawa be released after having served four months upon entering into a recognisance in the sum of $1000 to be of good behaviour for two years.

2    At the same time, Dr Ogawa was also convicted and sentenced in respect of the offence of contempt of court, contrary to s 129 of the District Court of Queensland Act 1967 (Qld) (District Court Act). Her disruptive behaviour during the course of the trial in respect of the offences against the Criminal Code provided the occasion for her offence of contempt. As to that contempt offence, Dr Ogawa was sentenced to a term of imprisonment of four months with a parole release date of 26 May 2009.

3    One effect of these sentences was that, as soon as Dr Ogawa otherwise became eligible for release from prison in respect of her contempt conviction, her term of imprisonment in respect of her Criminal Code offences commenced. Much later, another effect was to provide occasion for Ministerial satisfaction, albeit satisfaction attended with jurisdictional error, that Dr Ogawa’s visa should be cancelled, qv Ogawa v Minister for Immigration and Border Protection [2018] FCA 62 and, on appeal, Minister for Home Affairs v Ogawa [2019] FCAFC 98 (Minister for Home Affairs v Ogawa).

4    An appeal by Dr Ogawa against her convictions in respect of the Criminal Code convictions and a related application for leave to appeal against her contempt conviction were dismissed by the Queensland Court of Appeal: R v Ogawa [2011] 2 Qd R 350 (R v Ogawa). Her subsequent application for special leave to appeal to the High Court was dismissed: Ogawa v The Queen [2010] HCASL 188.

5    In October 2014, Dr Ogawa lodged with the Attorney-General’s Department a petition pursuant to which she sought either the granting of a pardon to her in the exercise by the Governor-General of the Royal Prerogative of Mercy or, alternatively, the referral of her case to the Queensland Court of Appeal pursuant to s 672A(a) of the Criminal Code 1899 (Qld) (Queensland Criminal Code), as applied by s 68 of the Judiciary Act 1903 (Cth) (Judiciary Act). That petition remained, seemingly unactioned, within that department for some years. Eventually, that delay provoked Dr Ogawa to apply to this Court, pursuant to s 39B(1) of the Judiciary Act, for an order in the nature of a mandamus directed to the Attorney requiring that he consider her petition. In the result, it became unnecessary to determine the merits of Dr Ogawa’s application for that relief. That was because, after its filing, the Attorney came to consider the merits of the petition, thereby removing any necessity to consider whether Dr Ogawa was entitled to the remedy which she claimed: see Ogawa v Attorney General [2018] FCA 498.

6    Dr Ogawa’s Criminal Code offences related to 83 emails sent by her between 13 April 2006 and 14 April 2006, 176 telephone calls made by her between 13 April 2006 and 19 May 2006 to officers of this Court, and to threats made in the course of a telephone conversation with the Associate to the then Chief Justice of this Court in May 2006. It will be necessary to explore in greater detail both this conduct and some of the elements of the offences concerned later in these reasons for judgment. For the present, it is necessary to understand that this conduct and Dr Ogawa’s conduct during her trial were capable of being viewed not just as quite unacceptable behaviour by Dr Ogawa. They were also capable of being viewed at least as a sequel, if not a response, to some truly lamentable ways with which Dr Ogawa had been dealt by various officers of the Commonwealth in the executive branch, which may, perhaps, have contributed to her behaviour. These ways were detailed by then Federal Magistrate Scarlett in Ogawa v Minister for Immigration [2006] FMCA 1039 at [40], [41] and [44] (21 July 2006) and by Cowdroy J in Ogawa v Minister for Immigration (2006) 156 FCR 246, at 253-255, [47]–[56]. That the offending conduct ought to be viewed against this wider background was a feature of her petition, insofar as Dr Ogawa sought a favourable exercise of the Royal Prerogative of Mercy.

7    On 20 March 2018, the Attorney-General declined to recommend to His Excellency the Governor-General that he exercise the prerogative in her favour. Further, the Attorney declined on that date to refer her case to the Queensland Court of Appeal pursuant to s 672A of the Queensland Criminal Code. On 26 April 2018, Dr Ogawa was notified, via the Attorney-General’s Department, of the fate of her petition.

8    Dr Ogawa has now applied for the judicial review of:

(a)    the decision of the Attorney not to refer her case to the Queensland Court of Appeal; and

(b)    the conduct of the Attorney in declining to recommend to the Governor-General to grant her a pardon.

9    On the hearing of the application, Dr Ogawa appeared on her own behalf. In this she was assisted (and assistance it truly was) at her request and with my permission by Dr Clive Turner, acting as a “McKenzie Friend” (qv McKenzie v McKenzie [1971] P 33). Particularly given her earlier conviction for contempt, it is only fair to record that Dr Ogawa conducted her case with commendable courtesy and no little ability. The respondent Attorney-General was represented by Mr del Villar of counsel, to whom I am indebted for his helpful submissions.

10    It is convenient first to consider the challenge made to the Attorney’s conduct in relation to the recommendation made concerning the exercise of the prerogative of mercy.

The prerogative of mercy

11    The exercise of the Royal Prerogative of Mercy forms part of the executive power of the Commonwealth which, by s 61 of the Constitution, is vested in the Queen and is exercisable by the Governor‑General as the Queen’s representative. That it forms part of the executive power of the Commonwealth necessarily means that it is exercisable only in respect of offences against the laws of the Commonwealth. This is implicit in the Constitution, in contrast with the position in the United States, where it – alongside the power to pardon itself – is explicit. That country also has a federal system of government but its constitution expressly provides (U.S. Const. art. 2 § 2, cl. 1) for a presidential power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”, which means federal not state offences.

12    Obviously enough, the Royal Prerogative of Mercy exercisable by the Governor-General extends to the offences against the Criminal Code in respect of which Dr Ogawa was convicted and sentenced. The position in relation to Dr Ogawa’s contempt conviction and sentence is less obvious.

13    Hardly unfairly, for the purpose of advising the Governor-General and responsive to the request made in Dr Ogawa’s petition, the Attorney and his departmental officers proceeded on the basis that the prerogative was exercisable by His Excellency also in respect of the contempt offence. Consistently, the parties conducted their respective cases on the assumption that the power extended to the contempt conviction and sentence. While that means the subject is not attended with controversy in this proceeding, such a consensus would not supply a source of any jurisdiction to review so much of the decision or related conduct as concerned the contempt conviction and sentence. It is therefore desirable that I record why it appears to me that the assumption of the parties is correct.

14    In trying Dr Ogawa for the offences against the Criminal Code with which she was charged, the District Court was exercising federal, not State, jurisdiction. The offences charged were offences against a law of the Commonwealth. The District Court was invested with federal jurisdiction to try those charges by s 39(2) and s 68(2) of the Judiciary Act, enacted in pursuance of s 71 and s 77(iii) of the Constitution.

15    For that purpose and materially, s 68(1)(c) of the Judiciary Act made the laws of Queensland applicable to the trial on indictment of a person charged applicable to the trial of Dr Ogawa. The power of the District Court under s 129 of the District Court Act to deal with a contempt of that court was made applicable was made applicable by the Judiciary Act to Dr Ogawa’s conduct during the course of her trial in one or the other of two ways. Arguably, it formed part of the procedure for her trial on indictment and was thus made applicable by s 68(1)(c) of the Judiciary Act. Such a conclusion would be in conformity with the view expressed by the High Court in relation to s 68 of the Judiciary Act in R v Murphy (1985) 158 CLR 596 at 617, which was 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”. Alternatively and in any event, there being no pervasive federal law in respect of a contempt of a court exercising federal jurisdiction, s 79(1) of the Judiciary Act made s 129 of the District Court Act applicable. That is because “Section 79(1) of the Judiciary Act applies where there is a gap in the law governing the exercise of federal jurisdiction by picking up State laws which regulate the exercise of State jurisdiction and applying them as Commonwealth laws governing the exercise of federal jurisdiction.”: Masson v Parsons [2019] HCA 21, at [1]. It is unnecessary finally to determine whether either or each of s 68(1)(c) and s 79(1) of the Judiciary Act rendered s 129 of the District Court Act applicable. The point is that any contempt in this case was a contempt of a court exercising the judicial power of the Commonwealth, not of the State of Queensland. It necessarily follows that it is the executive power of the Commonwealth, not that of the State of Queensland, which is the source of a power to grant a pardon in respect of the contempt offence.

16    In expressing that view, I have considered the possibility that, in a constitution providing for a separation of powers, it might be that the Commonwealth executive power to pardon does not extend to a contempt of a court exercising Commonwealth judicial power. A similar proposition was put in argument before and was expressly rejected by the United States Supreme Court in Ex Parte Grossman, 267 US 87 (1925) (Ex Parte Grossman) where, including by reference (at 110) to early English authority to this effect with respect to the Royal Prerogative of Mercy, it was held that the presidential power to pardon extended to the pardoning of criminal contempts. The correctness of Ex Parte Grossman was affirmed by that court in Schick v Reed, 419 US 256, 266 (1974). In a case where the subject is not controversial and the correctness of the position adopted by the parties is supported by highly persuasive authority, relevant by analogy, as well as by the English authorities mentioned therein, it is neither necessary nor appropriate, in my view, to explore the subject further.

17    Though not expressly stated in Dr Ogawa’s amended originating application, the hearing of her application has proceeded on the basis that she sought to invoke the Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as well as under s 39B(1) of the Judiciary Act.

18    That the source of the power to grant the pardon sought by Dr Ogawa is prerogative, forming part of the s 61 executive power, not statutory, necessarily means that, for the purposes of the ADJR Act and with the exception of the incidental referral power, there is no “decision to which this Act applies”, as that term is defined by s 3 of that Act. That definition looks to decisions made under an “enactment” as defined by s 3 of the ADJR Act. Subject to exceptions unnecessary to detail, an “enactment” is an “Act”. In turn that means an enactment of the Commonwealth Parliament: s 38(1), Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). Though the Constitution of which s 61 forms part is found in the Schedule to the Commonwealth of Australia Constitution Act 1900 (UK), that Act is an enactment of the Parliament of the United Kingdom, not of the Commonwealth Parliament. It is what the Acts Interpretation Act terms an “Imperial Act” in contradistinction to an “Act”: s 38(2), Acts Interpretation Act. There is a shorter path to this same conclusion which is that para (c) of the definition in s 3 of “decision to which this Act applies” excludes decisions of the Governor-General.

19    The jurisdiction under s 6 of the ADJR Act to review conduct is limited to “where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies” (emphasis added). For these reasons and as the Attorney correctly submitted, when the Attorney declined to make a favourable recommendation to the Governor-General in relation to Dr Ogawa’s petition, he was not engaging in conduct for the purpose of the making a decision to which the ADJR Act applied. Rather, he was engaging in conduct for the purpose of the making of a decision in the exercise of a prerogative power.

20    Thus, if the Court has any jurisdiction judicially to review the Attorney’s conduct in declining to tender advice to the Governor-General, it must be found, if at all, in that conferred on the Court by s 39B(1) of the Judiciary Act. Subject to presently immaterial exceptions, that jurisdiction is identical to the jurisdiction conferred on the High Court of Australia by s 75(v) of the Constitution.

21    In Martens v Commonwealth of Australia (2009) 174 FCR 114 (Martens), I accepted that the High Court’s judgment in Horwitz v Connor (1908) 6 CLR 38 (Horwitz v Connor) bound me to hold that a decision made by a vice-regal officer in the exercise of the Royal Prerogative of Mercy was not amenable to judicial review. Horwitz v Connor has not since been over-ruled by the High Court.

22    In Street v Queensland Bar Association (1989) 168 CLR 461, at 518–519 Brennan J (as his Honour then was) stated:

the doctrine of stare decisis … is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms …

See also in that case Mason CJ at 489; Toohey J at 560; and McHugh J at 588. It might be thought that any misconception as to the nature and extent of the Royal Prerogative of Mercy which sounded in the dismissal of a petition for its exercise was likewise capable of diminishing the cogency of the doctrine of stare decisis. Even so, the decision to depart from a considered judgment of the High Court is for that court, not for me. I therefore adhere to the view which I expressed in Martens and hold that a decision by the Governor-General to refuse to exercise the prerogative is not amenable to judicial review.

23    But Dr Ogawa has not sought the judicial review of a petition dismissal decision of the Governor-General, but rather of the Attorney’s conduct in declining to make a favourable recommendation. Does it necessarily follow from authority about the vice regal decision itself that, as the Attorney submitted, his prior conduct in declining to make a recommendation to His Excellency is necessarily also beyond judicial review under s 39B?

24    Having regard to a course of authority in the Judicial Committee of the Privy Council, to which I was helpfully taken by Dr Ogawa in her submissions, there is influential, persuasive authority to the contrary of the Attorney’s submission. In Pitman v State of Trinidad and Tobago [2018] AC 35, at [50] (Pitman v State of Trinidad and Tobago), referring to its earlier judgment in Lewis v Attorney General of Jamaica [2001] 2 AC 50 (Lewis v Attorney General of Jamaica), the Board stated that “the exercise of the prerogative of mercy … is subject to judicial control through judicial review”. Stated as baldly as that, the Board’s statement looks to be directly at odds with Horwitz v Connor. The time has long passed since the days when a judgment of the High Court at odds with one of the Board on the same subject would present a judge sitting in original Federal jurisdiction with an exquisite dilemma in terms of which was binding: qv Viro v The Queen (1978) 161 CLR 88 at 120. In any event, exploration of the authorities which underpin the Board’s statement in Pitman v State of Trinidad and Tobago discloses that the position is more nuanced than that statement would suggest.

25    It is in Lewis v Attorney General of Jamaica at 75–80 that the discussion of principle is to be found. In that case, the Board held that, although there was no legal right to mercy and the merits of the decision of the Governor-General (acting on the recommendations of the Jamaican Privy Council), on the exercise of the Royal Prerogative of Mercy were not reviewable by the courts, nonetheless the exercise of the prerogative, which included the making by the Jamaican Privy Council of the decision to advise the Governor-General was attended with an obligation to observe procedural fairness. In other words, the Board accepted that review on the basis of legality but not merits was possible and that this included the process by which advice was tendered to the Crown. It is the inclusive reference to recommendations which is of particular interest in the present case.

26    In so doing in Lewis v Attorney General of Jamaica, the Board departed from two earlier decisions, de Freitas v Benny [1976] AC 239 (on which the Attorney relied in the present case) and Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527 (Reckley No 2). Speaking for the majority, Lord Slynn of Hadley stated in Lewis v Attorney General of Jamaica at 75-76:

It is to their Lordships plain that the ultimate decision as to whether there should be commutation or pardon, the exercise of mercy, is for the Governor General acting on the recommendations of the Jamaican Privy Council. The merits are not for the courts to review. It does not at all follow that the whole process is beyond review by the courts. Indeed it was accepted both by Lord Diplock in Abbott v Attorney General of Trinidad and Tobago [1979] 1 WLR 1342, 1346 and by Lord Goff of Chieveley in the Reckley (No 2) case [1996] AC 527, 539C–E that there is a right to have a petition for mercy considered by the advisory committee. The same must be true of the Jamaican Privy Council.

…

Whatever the practice of the Home Secretary in England and Wales and before the death penalty was abolished in 1965, the insistence of the courts on the observance of the rules of natural justice, of “fair play in action”, has in recent years been marked even before, but particularly since, decisions like Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (see, e g, Lloyd v McMahon [1987] AC 625, 702–703; R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763) though the long citation of authority for such a self-evident statement is not necessary.

On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done.

27    In Australia, so far as amenability to judicial review is concerned, there is no longer any distinction to be drawn between decisions made by Ministers under statute and decisions made by a vice regal officer on the advice of a Minister: R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 and FAI Insurances Ltd v Winneke (1982) 151 CLR 342. Further, in Minister for Arts, Heritage and Environment v Peko- Wallsend Ltd (1987) 15 FCR 274, the Full Court, following views then but recently expressed in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (Council of Civil Service Unions v Minister for the Civil Service), held that the fact that a decision involved the exercise of a prerogative power would not necessarily preclude judicial review. As is apparent from the passage quoted above, Council of Civil Service Unions v Minister for the Civil Service is one of the authorities cited by the majority of the Board in Lewis v Attorney General of Jamaica in support of their conclusion.

28    As a general statement, what follows from these Australian cases is that merely because a decision is made by a vice regal officer on advice does not any longer remove that decision from the purview of judicial review. That makes the review limitation found in the ADJR Act, flowing from the definition of “decision to which this Act applies” look distinctly odd in a statute otherwise directed to the reform of Federal public law, qv Matthew Groves, ‘Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 736, 751–753. However that may be, the position which must prevail here is that, for reasons already explained, the ADJR Act is not a source of jurisdiction in relation to the refusal to exercise the prerogative. It does not follow from this that s 39B of the Judiciary Act, which is not similarly limited, is not a source of jurisdiction.

29    Lewis v Attorney General of Jamaica represents a deliberate departure by the Board from the view expressed by Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service at 418B that the prerogative of mercy was one of those prerogative powers the exercise of which, by its nature and subject matter, was not amenable to judicial review.

30    Expressly approved in Lewis v Attorney-General of Jamaica were these statements made by Cooke P (as he then was) in Burt v Governor General [1992] 3 NZLR 672, at 681:

… [the] claim that the Courts should be prepared to review a refusal to exercise the prerogative of mercy, at least to the extent of ensuring that elementary standards of fair procedure have been followed, cannot by any means be brushed aside as absurd, extreme or contrary to principle. For example, it is obvious that allegations in a petition, unless patently wrong, should be adequately and independently investigated by someone not associated with the prosecution: the Court could at least check that this has happened.

31    Also referred to with approval in that case was this view of the pardoning power, expressed by Holmes J of the United States Supreme Court in Biddle v Perovich, 274 US 480, 486 (1927):

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.

32    No less today in Australia could it be said that a pardon is not a “private act of grace”. It is an exercise of the executive power of the Commonwealth. The Constitution does not just provide for the vesting of that power in the Governor-General as the Queen’s representative. It also provides, via s 75(v) of the Constitution, for the amenability of the exercise of executive power to review for jurisdictional error action or inaction by officers of the Commonwealth. In so doing, it takes no account of the rank or particular position of the Commonwealth officer who has made or who is declining or neglecting to make a decision. As noted, it is the like jurisdiction, conferred by s 39B of the Judiciary Act, which Dr Ogawa has sought to invoke for the purpose of challenging the decision to refuse her a pardon.

33    On first principles, it is difficult to see why the following criticism of Reckley No 2 by T R S Allan in Constitutional Justice (Oxford, 2001) at 174–177, which anticipated Lewis v Attorney-General of Jamaica, ought also not describe why and to what extent a decision in relation to a pardon is amenable to judicial review under s 75(v) or, in this Court, s 39B:

Now, the exercise by ministers of unfettered power in their relations with the private citizen is radically inconsistent with constitutional principle: the notion of a purely administrative or discretionary act that determines a citizen’s fate, without recourse to legal safeguards, is a flagrant contradiction of the rule of law. The principle of equality that forbids unjustified discrimination between persons is absolute; and the denial of enforceable rights of procedural fairness and due process therefore leaves the prerogative of mercy open to abuse without any constitutional justification. No proper exercise of a valid legal power, whether in a person’s favour or against him, can accurately be called a ‘departure from the law’: there is no distinction between leniency in the present context and any other case in which a person’s treatment is subject to ministerial discretion. If the constitution grants the prisoner recourse to the executive to relieve him of the ordinary consequences of a criminal conviction, he is entitled to precisely the same quality of impartial consideration and treatment as would be accorded any other citizen in similar circumstances. The criteria for the grant or denial of a pardon must be as capable of justification, in terms of the general interest, as those which govern the allocation or distribution of any other public benefit or good: it cannot be denied on arbitrary or capricious grounds. The prisoner must therefore be treated fairly in accordance with those criteria, an obligation whose fulfilment would normally be assisted by considering his representations, enabling him to make his case for clemency.

...

… No one, even if convicted of serious crimes, should in any circumstances be subject to the unfettered discretion of a public official, or be dependent on grace or favour, bestowed on idiosyncratic grounds, and vulnerable to personal antagonism or caprice. The prerogative of mercy is wrongly so called: there is only a prerogative of justice, exercised by, or under the close supervision of, the Queen’s courts.

...

… Where the most important interests of the citizen are at stake, the executive should be required to meet the highest standards of fairness and rationality. To treat a decision about the execution of a prisoner as a matter of unfettered discretion is a betrayal of the rule of law in a context where its demands are especially onerous. It is quite mistaken to seek to identify a field of executive power whose nature makes it unsuited to judicial review: the correct approach is always to examine the requirements of equality and procedural fairness, as they apply in the context of the decision-making process in question. Where important issues of public policy arise for which the ‘political’ branches must take responsibility, the courts must be careful to ensure that the requirements of fairness do not operate to deprive ministers or officials of their legitimate freedom of decision and action. The proper balance between individual right and public interest can only be determined, however, by analysis and argument: it cannot be obtained by wielding the blunt tool of ‘justiciability’, or designating heads of governmental power as inherently ‘political’.

Allan’s references to minimum requirements of procedural fairness and due process are not, viewed from an Australian perspective, mere rhetoric but are in conformity with cases such as Annetts v McCann (1990) 170 CLR 596, at 598; Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44, at 61, [51]; and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258, [11].

34    In short then and with respect, Horwitz v Connor looks decidedly dated in its eschewing of the amenability of an exercise of the pardoning power to any judicial review. Indeed, there is a discernible trend in those nations of The Commonwealth which remain constitutional monarchies towards acceptance of the position that certain aspects of the exercise of vice-regal power are justiciable: see, in addition to the authorities discussed in this judgment, A Twomey, The Veiled Sceptre, (Cambridge, 2018) at 66. The modern approach looks to the subject for decision, not to the source of the power, in determining the nature and extent to which, if at all, a decision by an officer of the executive is amenable to judicial review. In form, Horwitz v Connor was an application, in the result unsuccessful, for special leave to appeal against a judgment given in the Supreme Court of Victoria that, on the true construction of regulations made under s 540 of the Crimes Act 1890 (Vic), the applicant was not entitled to be released on remission of his sentence. Thus, though the relevant decision-maker was the Governor in Council, the source of the relevant power was statutory, not the prerogative. But the terse observation of the High Court, at 40, is general in its terms:

But a mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.

Even if one might characterise this observation as, strictly, a dictum, it represents a considered, unanimous view of the High Court. I am not at liberty to depart from such a unanimous, considered dictum. Further, that view is one later shared by Aickin J in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, at 261, who cited the exercise of the prerogative of mercy as a “clear enough example” of a decision not reviewable by any court.

35    In Eastman v Attorney-General for the Australian Capital Territory (2007) 210 FLR 440 (Eastman) at [78], Lander J, sitting as a judge of that territory’s Supreme Court, regarded Horwitz v Connor as of continuing authority, binding him to reach a like conclusion. Later, in Osland v Secretary, Department of Justice (Vic) (2008) 234 CLR 275, at [47] (Osland), Gleeson CJ, Gummow, Heydon and Kiefel JJ, though they referred (at [47], fn 44) to Horwitz v Connor, expressly left open the question as to whether it was possible to obtain judicial review of a decision to refuse to grant a pardon.

36    In the present case, the Attorney’s submission was that it would be subversive of the authority of Horwitz v Connor for any relief to be granted in relation to any aspect of the conduct or process leading up to the exercise of the prerogative. I do not accept that this follows.

37    The exercise of the Royal Prerogative of Mercy certainly entails a discretionary value judgment. In relation to that value judgment, only the existence of the subject conviction and sentence or penalty could be said to be a mandatory relevant consideration. That value judgment might permissibly include political and even geopolitical considerations in particular cases. It might involve considerations of the kind to which I referred in Martens, at [70], and a related evaluative decision as to whether to make a reference under a provision such as s 672A of the Queensland Criminal Code. It is difficult to see how the evaluative merits of a prerogative of mercy decision could ever be amenable to judicial review: see Shergill v Khairan [2015] AC 359 at 377–378, [41]–[43]. It does not follow from this that the process by which a prerogative of mercy decision is reached is immune from judicial review, much less that a related reference decision is immune from judicial review.

38    In Eastman, having surveyed the Privy Council authorities discussed above (save the yet to be decided Pitman), Lander J, at [79], concluded:

79.    I think therefore I am entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.

This passage in Eastman is referred to, at [84], by the Full Court in Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 (Yasmin v Attorney-General) but, ultimately, the Full Court chose, at [88], to describe the state of the law in relation to whether the exercise of the prerogative itself is reviewable as “somewhat unsettled”. It was unnecessary in that case to do other than that, because it directly concerned whether a decision under a statutory reference power equivalent to s 672A of the Queensland Criminal Code was amenable to judicial review. As it happened, though neither Martens nor the subsequent judgment of the Queensland Court of Appeal, R v Martens (No 2) [2011] 1 Qd R 575 (R v Martens) which, by majority, confirmed the views I had expressed in Martens as to the operation of s 68 of the Judiciary Act, appears to have been cited to the Full Court, the Full Court’s conclusion in Yasmin v Attorney-General that the exercise of the referral power was amenable to judicial review accords with the conclusion I had earlier reached in Martens, and for like reasons.

39    I would not, in the face of Horwitz v Connor, go so far as to conclude that the Court, in the exercise of the jurisdiction conferred by s 39B of the Judiciary Act, could set aside a pardon related decision of the Governor-General in Council. However, for just the reasons given by Lander J in Eastman, the Court could, in my view, grant declaratory relief that, for example, an applicant for the exercise of the prerogative had not been afforded procedural fairness or that a decision to decline to make a recommendation, if apparent from reasons furnished to an applicant, entailed a misunderstanding as to the nature and extent of the prerogative power. No narrow view should be taken as to the extent of the Court’s power to grant declaratory relief: Edwards v Santos Ltd (2011) 242 CLR 421.

40    In the present case, the submission upon which the Attorney acted in declining to make a favourable recommendation for the exercise of the prerogative of mercy stated in a summary:

Although the Royal Prerogative of Mercy is a broad and discretionary power, long standing convention is for the power to only be exercised if the Attorney-General is satisfied the person is morally and technically innocent of the offence.

The reference to convention was developed in this way elsewhere in the submissions:

Long standing convention is that the granting of a full pardon should only be recommended to the Governor­General if you are satisfied that the convicted person is:

a)    morally and technically innocent of the offence in respect of which the pardon is sought, and the offender has no remaining avenue of appeal against his or her conviction, or;

b)    morally and technically innocent of the offence, and there are exceptional circumstances justifying the grant of a pardon despite the failure to meet the requirements of the first ground, taking into account the need to respect the separation of powers between the executive and the judiciary.

This high threshold reflects the general policy approach of non-intervention in regard to judicial discretion and a respect for the primacy of the role of the courts in determining criminal guilt and imposing punishment.

The submission was accepted by the Attorney. This acceptance dictated the fate of the petition.

41    These sentiments as to the impact of convention were taken up in the advice of the outcome of her petition, consequentially sent to Dr Ogawa by an officer of the Attorney’s department on his behalf:

Having regard to all the relevant information, the Attorney-General is satisfied that you were not morally and technically innocent of the offences of which you were convicted. Petitions for the exercise of the Royal Prerogative of Mercy are considered in view of a person’s overall culpability and not just anomalies in respect of a person’s conviction. Accordingly, the Attorney-General has made a decision not to exercise the Royal Prerogative of Mercy in relation to your convictions. The Attorney-General also declined to refer your matter to the Queensland Court of Appeal.

While the author of the letter has, with respect, erroneously conflated the decision-maker in relation to the exercise of the prerogative (His Excellency the Governor-General) with the author of the advice upon which, by constitutional convention, the decision-maker acts (here, the Attorney), the provenance of the passage quoted is obviously in the apprehended limitation on the exercise of the pardoning power, arising from the supposed convention extracted above. There is a controversy between Dr Ogawa and the Attorney as to whether such a convention does indeed limit the basis upon which the prerogative may be exercised. Is she, for example, obliged to satisfy the Attorney that she is “morally and technically innocent” before a favourable recommendation may be made? That controversy is one in respect of which declaratory relief could be granted, in my view.

42    The controversy and the understanding of the convention governing the exercise of the Royal Prerogative of Mercy which is revealed to have been held in relation to the disposition of Dr Ogawa’s petition are, in my view, identical to the controversy before the court and understanding which once prevailed in the United Kingdom’s Home Department revealed in R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 (Bentley), at 355-356. The resemblance of understanding as between the Attorney and his department in the present case and the Home Secretary and his department in Bentley is so uncanny that it is almost as if those who prepared the submission accepted by the Attorney consulted only a reference work written prior to that case being decided. In Bentley also there was evidence, recited at 358-359, that:

The present Home Secretary is fully aware that there is nothing to prevent him recommending the grant of a free pardon even in a case in which he is not persuaded that the conviction was wrong. … He continues to think that a free pardon should be recommended only when the Home Secretary of the day is satisfied that the convicted person was not guilty of the offence charged.

43    In Bentley, the court did not regard the Home Secretary’s understanding just as non-justiciable policy. Instead, the court considered (at 363) that:

the substance of the applicant’s case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.

The substance of Dr Ogawa’s case in relation to the prerogative of mercy aspect was the same. The facts of the present case support her raising such a case.

44    After a truly illuminating survey of the history of this prerogative power in the United Kingdom, a Queen’s Bench Divisional Court concluded, in Bentley, at 365:

it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case.

It is exactly this error which is evident in the respondent’s understanding as to the only occasion, by convention, for its exercise. Further, in Bentley, the court, at 363, had concluded that whether there was an error of law in the understanding of the prerogative power in the decision as to whether to recommend a pardon was reviewable.

45    The nature and extent of the prerogative power evident in Bentley accords with the understanding evident in this passage in the joint judgment in Osland, at [47]:

The terms “pardon” and “mercy” may create a misleading impression. The power may be invoked in a case where it is alleged that there has been a miscarriage of justice, or in a case where the grounds relied upon are purely compassionate, or in some intermediate situation. The person in question may, or may not, claim to be technically and/or morally innocent. An application for a pardon does not imply an admission of guilt; on the contrary, it may be accompanied by an assertion that there has been a wrongful conviction. Nor does it necessarily imply an assertion of innocence; it may be based upon a contention that the law is unduly harsh either generally or in its application to the particular case, or that there are personal grounds for compassion. The pardon, if granted, may be absolute or conditional. In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative.

46    The Attorney’s understanding as to the nature and extent of circumstances which, by convention, the prerogative of mercy falls to be exercised is also at variance with what is stated in Osland. Yet that variance is the basis upon which Dr Ogawa’s petition has been decided.

47    Regard to Osland, at [47], also discloses another error in the statement in the advice upon which the Attorney acted. An exercise of the prerogative of mercy does not intrude on “the primacy of the role of the courts in determining criminal guilt and imposing punishment”. For, as is there stated in the joint judgment in Osland, “By hypothesis, a petitioner has exhausted his or her legal rights.”

48    In my view, Dr Ogawa is entitled to a declaration that the exercise of the power under s 61 of the Constitution to grant a pardon is not, by convention, limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence but is a flexible power the exercise of which exercise may be adapted to meet the circumstances of the particular case. There is utility in the granting of such a declaration. It will not just correct an error of law, evident from the advice to Dr Ogawa of the decision, in the Attorney’s understanding. It also will have practical utility. That a favourable recommendation was not made on an earlier petition does not prevent a fresh petition for the exercise according to law of the prerogative or the making by the Governor-General of a decision on the merits of that further petition. Further, there are circumstances in Dr Ogawa’s case which might, on a correct understanding of the nature and extent of the pardoning power, excite clemency even if there were no satisfaction that she was “morally and technically innocent” of the offences of which she was convicted.

49    Examples from the United Kingdom, drawn from the era after Bentley was decided, highlight just how flexible the Royal Prerogative of Mercy is. In 2013, the great mathematician and computing pioneer, Alan Turing, whose genius contributed greatly to the Allied code-breaking successes in the Second World War and who died in 1954, was granted a posthumous pardon in respect of offences of gross indecency of which he had been convicted in 1952 under the then prevailing criminal law: “Royal pardon for codebreaker Alan Turing”, BBC News, 24 December 2013: https://www.bbc.com/news/technology-25495315 (Accessed, 19 June 2019). The pardon was expressed by the United Kingdom’s Justice Minister as “a fitting tribute to an exceptional man”. As is evident from the report of the granting of the pardon, by the time of the decision, the offence of which Turing had been convicted was no longer part of the criminal law and social mores had changed but there was no suggestion that, at the time of the conviction, he was either morally or technically innocent. In 2001, two prisoners incarcerated at a prison farm were granted remission of their sentences in recognition of their bravery in rescuing and thereby assisting in the saving of the life of a prison officer farm manager who had been attacked and gored by a wild boar at the prison farm: “Heroic prisoners freed as reward”: BBC News, 19 June 2001: http://news.bbc.co.uk/2/hi/uk_news/wales/1396040.stm (Accessed, 19 June 2019). The power to remit punishment also falls within the Royal Prerogative of Mercy. Once again, there is no suggestion in the relevant report that either of the prisoners was morally or technically innocent of the offences of which they had been convicted and sentenced to imprisonment.

50    As I above and, earlier, other federal judicial officers have observed, Dr Ogawa was adversely affected, prior to the offending conduct, by truly lamentable lapses in federal public administration, including by the now former Migration Review Tribunal. It is by no means impossible to see how, not misled by an erroneous understanding that convention limited the occasion for its exercise, viewing the offending conduct against this wider background and taking into account whatever more recent antecedents are placed before him, the Governor-General might, on advice, decide to temper the justice of Dr Ogawa’s convictions and sentences with the mercy of a pardon. It is that quality of the Royal Prerogative of Mercy which was so eloquently captured by William Shakespeare in the passage from The Merchant of Venice which introduced these reasons for judgment. That decision, however, it must be emphasised, is an evaluative judgment for the Governor-General in Council, not for the Court. For the Court to grant declaratory relief, it is enough that there is a justiciable controversy and that the granting of such relief can be seen to be of practical utility. That there is an opportunity to seek a favourable outcome means that there is practical utility in the granting of such relief.

Decision to refuse to refer a case to the Queensland Court of Appeal

51    In Martens, I canvassed the then state of the authorities in relation to the origins of a reference power such as that found in s 672A of the Queensland Criminal Code, the role of a Law Officer in deciding whether to refer a case pursuant to such a power and the nature of the jurisdiction exercised by an appellate court on such a reference. I shall not repeat what is there stated but instead incorporate the same by reference. I continue to adhere to the views on these subjects which I expressed in that case. In particular, I respectfully agree with the analysis offered by Lander J as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 (von Einem v Griffin) at 138-140, as extracted by me in Martens, at [55]. Further, contrary to the Attorney’s submission, so far as I am presently concerned when sitting in the original jurisdiction, that a reference decision is amenable to judicial review is not unsettled. It is concluded by the Full Court’s judgment in Yasmin v Attorney-General. The ultimate outcome in the Queensland Court of Appeal in R v Martens, the resultant quashing of a conviction, and the vindication of a man’s liberty (exceptionally, Martens had been granted bail, pending the outcome of the reference: qv R v Martens [2010] 1 Qd R 564), underscores the injustice attendant in any other conception of the amenability of a reference decision to judicial review.

52    There are three aspects to the Attorney’s reference decision:

(a)    the contempt conviction;

(b)    further evidence; and

(c)    subsequent authority in relation to what constitutes harassment.

53    The parties addressed each of these aspects. I consider each of these below, having regard to the approach adopted by Lander J in von Einem v Griffin and by me in Martens.

The contempt conviction

54    One answer, and very probably a complete answer, to any suggestion by Dr Ogawa of error by the Attorney in declining to refer the contempt conviction for consideration by the Court of Appeal is that put by the Attorney in submission: her petition did not, in terms, seek that reference.

55    It was the trial judge in the District Court who charged Dr Ogawa with contempt and convicted her of the same. In submissions, Dr Ogawa relied upon the observations made by Black CJ (with whom Finkelstein and Greenwood JJ agreed in this regard) in Clampett v Attorney-General (Cth) (2009) 181 FCR 473 (Clampett) in the analogous context of a summary hearing of contempt in the face of the court. In Clampett, Black CJ, at [37], citing Keeley v Brooking (1979) 143 CLR 162 at 173 (Keeley v Brooking) per Stephen J, referred to the essential problem with such a summary hearing being the conflict with fundamental principles of justice “when, in effect, the roles of prosecutor, witness and judge are performed by one and same person”.

56    Clampett was decided after the learned District Court judge had dealt with Dr Ogawa for contempt but the problem which can attend such a charge being dealt with summarily by a trial judge was, as the observations made by Stephen J in Keeley v Brooking highlight, no new subject in March 2009. The point was one which could have been raised on Dr Ogawa’s behalf in her appeal to the Court of Appeal. Regard to the judgment of Keane JA (as his Honour then was), with whom Chesterman JA and Jones J agreed, in that appeal, R v Ogawa, discloses that it was not. Clampett did not overturn earlier authority so as to call into question the legality of the procedure adopted by the learned District Court judge. Whether it is appropriate for a judge or magistrate to deal summarily with a contempt in the face of the court is inherently dependent on the circumstances of a given case. The potentiality of a problem of the kind to which Black CJ referred in Clampett and Stephen J in Keeley v Brooking is always present but is usually well-recognised and some contempts are of a nature which requires a summary response if the administration of justice is not to be brought into disrepute or subverted. Zukanovic v Magistrates’ Court (Vic) (2011) 32 VR 216 is an example of a case where, though Clampett was relied upon by the appellant, it was considered appropriate in the circumstances for a magistrate to deal summarily with a contempt in the face of the court.

57    Dr Ogawa also made reference in her submissions to alleged error on the part of the District Court in dealing with her, given her then mental state. She was found fit to be tried and feigning mental incapacity to avoid a trial. This subjects were dealt with at length by the Court of Appeal in her subsequent appeal. No error on the part of the trial judge was found. There is no new evidence on this subject. Neither is there any later authority which would call into question the correctness of the court of Appeal’s judgment in this regard.

58    The Attorney made no error in not referring the contempt conviction to the Queensland Court of Appeal.

Further evidence?

59    The evidence to which Dr Ogawa referred was that given by a Mr Christopher Young at her committal, but which was not in the result, led at her trial. Mr Young gave evidence at the trial but he was not asked about a particular statement which he had made in the committal proceeding when under cross-examination in that proceeding. Keane JA observed in R v Ogawa, at [81]:

The two charges under s 474.15(1) of the [Criminal Code] involved the appellant making a threat to Mr Christopher Young, a barrister and Associate to the Chief Justice of the Federal Court at the relevant time, to kill two Federal Court registrars with whom she had previously dealt with and was currently dealing with, namely Ms Jane Mussett (count 2) and Mr Tim Conrad (count 3). The appellant's threat arose in the context of her seeking to have proceedings that she had commenced in the Federal Court removed from the docket of Justice Lander in South Australia to that of Justice Finkelstein in Victoria.

As to these two charges, his Honour later concluded, at [122]:

[122]    The evidence of Mr Young establishes that the appellant made two distinct threats, one against each of the registrars. The appellant was reported as relevantly saying: “I will kill Jane Mussett. I will kill Tim Connard.” The making of each of those threats by the use of the telephone was a contravention of s 474.15(1).

This appears to have been a reference to the evidence which Mr Young gave at the trial, not additionally to the evidence which he gave at the committal.

60    In cross-examination at her committal, this admission had been made by Mr Young in relation to the context in which the threat had been spoken to him by Dr Ogawa:

And did she appear to be emotionally upset in the sense that she was tearful or crying? – Yes.

61    That this evidence was available to be led at trial and was not led does not mean that any reference was necessarily doomed to fail. The issue in such a reference is whether there has been a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124. It is not whether, insofar as particular evidence is relied upon, that evidence is “fresh” in the sense that it could not, with due diligence, have been obtained at the time of trial: R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 (R v Daley).

62    Also at the committal, Mr Young had stated that he had identified the threat to kill the Registrars as “firm” and “strong” and stated that the threat was made, “almost like in a seething tone”. But he also stated, “she didn’t appear to understand or appreciate the weight of what she’d said” and that she continued “to talk in a – an agitated state”; and “seemed to me not to hear or to listen to what it was that I was saying that made me reach the assessment that she – that she hadn’t understood the gravity of it”.

63    It was common ground that a submission made by Dr Ogawa in her petition that a key element of s 474.15(1) of the Criminal Code is an intention to instil fear in the person to whom the threat is made was correct. Mr Young’s statements at her committal did go to this element.

64    One submission made by the Attorney was that the reason why the admission and other statements at committal were not again elicited from Mr Young or put to him at trial was that Dr Ogawa’s own behaviour at her trial, culminating in her refusal to participate, precluded this. That is true but it is also nothing to the point. Evidence either reasonably admits of exculpation such that it is arguable there was a miscarriage of justice, or it does not. That same proposition is also a complete answer to a further point made by the Attorney, which was that, though the evidence given at the committal was before the Queensland Court of Appeal and though, on her appeal Dr Ogawa was represented by senior and junior counsel, nothing had been made by them on the appeal of this admission by Mr Young. But as Keane JA observed in R v Daley, the “issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred.”

65    In concluding that there had been no substantial miscarriage of justice, in R v Ogawa, Keane JA stated, at [149]-[150]:

[149]    In this case, the jury clearly accepted that the appellant made the threats the subject of counts 2 and 3 on the indictment. The evidence in this regard was unchallenged. The only question relates to whether the appellant intended Mr Young to fear that her threat would be carried out. I am in no doubt that the appellant did so intend. Her threats were made with a view to getting her way in relation to the litigation in which she was involved in the Federal Court. She could only have expected to get her way if her threats were taken seriously by the officers of that Court to whom they were made. It is to be emphasised that the intention of which s 474.15(1)(b) speaks is an intention that the person to whom the threat is made should "fear that the threat will be carried out". The evidence does not suggest that the appellant could have had any other intention in mind in making the threats. On the contrary, the context in which the threats were made suggests that the appellant was determined that her threat be taken seriously.

[150]    I have no doubt as to the appellant's guilt of these charges on the evidence which was properly admitted against her. No substantial miscarriage of justice occurred as a result of the appellant's convictions on counts 2 and 3 on the indictment.

[Emphasis added; footnote references omitted]

66    What is patent, having regard to the passages emphasised in this excerpt, is that the Court of Appeal’s conclusion that no substantial miscarriage of justice had occurred was made by reference to the evidence of Mr Young adduced at trial, not by reference to the evidence which he gave at the committal. The High Court’s subsequent refusal of special leave to appeal related to the conclusion so reached on that evidence.

67    Contrary to Dr Ogawa’s submission on the present application, Mr Young’s evidence at the committal, including Dr Ogawa’s reliance in her petition on the admission, was not ignored by the Attorney’s department in the submission made to and inferentially accepted by him. Rather, an analysis of the evidence was made and put to the Attorney in these terms:

Dr Ogawa refused to participate in her trial, meaning that matters she considered to constitute key evidence were not presented to the court. However, in light of the evidence of Mr Young at the committal regarding the applicant’s manner in making the threats …, the grounds relied on by Dr Ogawa in her petition do not appear to hold the weight attributed to it by Dr Ogawa.

68    What is nowhere apparent in the submission put to the Attorney is the nature of the test which he should apply in deciding whether to refer a matter to the Queensland Court of Appeal. In the consequential letter to Dr Ogawa advising the result of her petition insofar as a reference had been sought, it is stated:

The Attorney-General has decided that none of the grounds raised in the petition, either individually or collectively, establish a miscarriage of justice. In particular there is no new evidence that has not previously been considered by the courts which establishes a miscarriage of justice or that you were denied a fair trial according to law. Furthermore, the High Court, in dismissing your special leave application found that ‘the Court of Appeal’s conclusion that there has been no substantial miscarriage of justice was based on a careful review of the evidence’.

[Emphasis added]

69    The nature of the test was not free from judicial authority. It was not considered by the Full Court in Yasmin v Attorney-General, because that case was concerned with the anterior question of whether or not there was a judicially reviewable duty to consider whether or not to decide to reference a case to the relevant appellate court. But it was considered by Lander J in von Einem v Griffin and by me in Martens.

70    In von Einem v Griffin, at 140, Lander J, after examining what might be the nature of the test and after considering alternative possibilities, stated, without reaching a concluded view as to which of the possibilities was applicable:

… [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, ie 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.

71    In Martens, at [51], I stated:

… [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.

72    In my view, the sentence emphasised in the Attorney’s letter to Dr Ogawa evidences that he has taken it upon himself to undertake the role which the Court of Appeal would have to undertake if a reference were made. There is nothing in his department’s submission to him which would indicate any different view of the Attorney’s role. His role was to determine whether, as Lander J put it in von Einem v Griffin, there was a reasonable possibility that there had been a miscarriage of justice or, as I put it in Martens to no different end, 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. The Attorney has failed to apply the correct test in deciding whether to refer this aspect of the petition to the Queensland Court of Appeal.

73    None of this is to suggest that a Law Officer (or delegate) considering a petition for the purpose of deciding whether to make a reference to an appellate court must make a reference whenever that is requested. Requests which are obviously untenable, frivolous or vexatious may be declined. But it is not the role of a Law Officer to assume the role consigned by legislation to that appellate court by deciding the fate of a reasonably arguable reference request in a petition.

74    The adoption by the Attorney of an incorrect test would only constitute a jurisdictional error if it were material, ie if the adoption of the correct test would have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780.

75    In my view, the Attorney’s error was material.

76    An element of an offence against s 474.15 of the Criminal Code is that “the first person intends the second person to fear that the threat will be carried out”: s 474.15(1)(b). In Jesser v Chief of Air Force (2015) 300 FLR 218, at [32] (Jesser), in relation to the transitive verb “fear” as used in the context of s 31(b)(ii) of the Crimes Act 1900 (ACT), the Defence Force Discipline Appeal Tribunal (Tracey, Logan and Brereton JJ), after a review of authority, held that it entails “that sense of dread which carries with it “alarm, terror or fright””. The Tribunal, at [31], distinguished “fear” as so used from mere “apprehension”.

77    In light of s 474.15(3) of the Criminal Code, it was not necessary for the Crown to prove that Mr Young, as the person receiving the threat, actually feared that the threat would be carried out. That does not mean that his evidence as to Dr Ogawa’s emotional state or his other perceptions were irrelevant to an assessment of whether she held the requisite intention. When one takes into account the whole of Mr Young’s evidence, including that at the committal, it is self-contradictory and, arguably, hardly “firm” as to her intention.

78    Viewed in the context of the whole of the evidence, it is at least arguable that the alleged threats were no more than the dramatic remarks of a person in an agitated, emotional state and careless of language, rather like those of the successful applicant in Jesser, but necessarily absent any intention to occasion alarm, terror or fright or even, given that s 474.15(4) defines “fear” to include “apprehension”, apprehension. In context, it is arguable that “apprehension” means rather more than entertain a bare possibility and must entail, reasonably, a “serious potential impact”: Monis v The Queen (2013) 249 CLR 92, at [310] (Monis). When one takes account of the evidence Mr Young gave at the committal, it is arguable that the words used by Dr Ogawa were an emphatic way of expressing frustration, devoid of threatening intent, rather akin to the language of litigants in person who describe an administrative finding of fact with which they disagree as unreasonable. It is hardly beyond the realm of human and therefore juror experience that a person in a moment of great vexation at another’s conduct utters words such as, “I’ll murder him”, without there ever being an intention to murder the person concerned. That is really the case Dr Ogawa seeks to advance, having regard to the committal evidence.

79    At least insofar as it relates to a refusal to refer so much of the petition as seeks to challenge the convictions in respect of offences against s 474.15 of the Criminal Code, Dr Ogawa’s application must, in my view, succeed.

The “harassing” offences

80    Materially, s 474.17 of the Criminal Code provides:

474.17    Using a carriage service to menace, harass or cause offence

(1)    A person commits an offence if:

(a)    the person uses a carriage service; and

(b)    the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

81    At her District Court trial, Dr Ogawa was convicted and sentenced in respect of one charge of sending “harassing” emails and one charge of making “harassing” phone calls, each contrary to s 474.17 of the Criminal Code. In his summing up to the jury, the learned District Court judge stated that the “continual making of unwanted emails or unwanted telephone calls” was sufficient to constitute “harassing”. This conception as to what was sufficient to constitute “harassing” was shared by the Queensland Court of Appeal, in R v Ogawa, at [128]-[129], where Keane JA, in dismissing a challenge to the correctness of the summing up, stated:

[128]    The argument that the offence is directed to the content of the telephone calls and not their “quantity and frequency” must be rejected. Parliament expressly included the words “whether by the method of use or the content of a communication, or both” in re-enacting the offence previously contained in s 85ZE of the Code. The Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth) relevantly notes:

“ ‘The method of use’ refers to the actual way the carriage service is used, rather than what is communicated during that use. The continual making of unwanted telephone calls to a particular person would fall into this category.”

[129]    For the reasons that appear below, I conclude that the evidence of Mr Connard as to the distress caused to Ms Mussett by the number of calls and the content of them was inadmissible. Nevertheless, on the balance of the evidence, and having regard to the proper construction of s 474.17, I consider that the jury were entitled to find the appellant guilty of the offence charged in count 4. The jury were entitled to have regard to the quantity and frequency of telephone calls in the context established by the vituperative emails the subject of count 1 and to conclude on that basis that reasonable persons would regard frequent and apparently random telephone calls made in that context as harassing. The jury were entitled to conclude that the appellant must have understood that her calls were, by reason of their quantity and frequency, unwelcome and unwanted by the recipients.

[Emphasis added]

82    The trial judge’s summing up, and especially the emphasised part of the reasons for judgment of Keane JA, exemplified what Dr Ogawa termed a “wide” view of what might permissibly constitute “harassing” in terms of s 474.17 of the Criminal Code. The argument which Dr Ogawa advanced in her petition and upon which she sought a reference in relation to her convictions in respect of offences against s 474.17 of the Criminal Code was that this “wide” view was at variance with later observations made in Monis by Crennan, Kiefel and Bell JJ. She further advanced a submission in her petition that, in the aftermath of Monis, Queensland District Court judges had chosen to adopt a more narrow view of what constituted “harassing”. In this regard she cited Starkey v Commonwealth Director of Public Prosecution [2013] QDC 124 (Starkey) and Cox v Commissioner of Police [2013] QDC 278 (Cox). She adopted this position in her submissions in the present case.

83    In Monis, and with particular reference to the offence of using a postal or similar service to menace, harass or cause offence in s 471.12 of the Criminal Code, Crennan, Kiefel and Bell JJ stated:

The words “menacing” and “harassing” imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person's safety. For consistency, to be “offensive”, a communication must be likely to have a serious effect upon the emotional well-being of an addressee.

[Footnote references omitted]

84    Regard to the Attorney’s advice to Dr Ogawa of the outcome of her petition discloses that this aspect of that petition fell under the same generic statement which I have already held constituted a misconception of the role undertaken by the Attorney in deciding whether or not to refer a petition to an appellate court. Once again, that error will only sound in the granting of relief on judicial review if it is material.

85    The more particular reasoning for rejecting this aspect of Dr Ogawa’s request confirms that the rejection was not on the basis her position was not reasonably arguable but rather on the basis of a concluded view as to the merits of such an argument. This is evident from the following portion of the “Summary” in the submission adopted by the Attorney:

5.    It is noted that the decision in Monis v The Queen [2013] HCA 4 narrowed the interpretation of ‘harassing’ for the purposes of determining what is offensive, however, judging ‘offensiveness’ necessarily requires consideration of the content of the communications. In that sense, it was appropriate for the High Court to look at the grouping of ‘menacing, harassing, or offensive’ in subsection 471.12 of the Criminal Code in assessing the objective standard of offensiveness. This is particularly so given the political context of the Monis case and the court’s consideration of the application of s.471.12 of the Criminal Code to the implied constitutional freedom of political communication. It was in this context that the High Court in Monis said that the words ‘menacing’ and ‘harassing’ imply a serious potential effect upon an addressee, one which causes apprehension, if not fear, for that person’s safety.

6.    In contrast, in Dr Ogawa’s case, the prosecution was not relying on the offensive aspect of the offence. The provision specifically allows for the use of the carriage service to constitute the offence, and it follows that a wide interpretation of “harassing” as applied by the trial judge and affirmed by the Court of Appeal in Dr Ogawa’s case remains relevant, and is indeed supported by the explanatory memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth) which provides:

The method of use refers to the actual way the carriage service is used, rather than what is communicated during that use. The continual making of unwanted telephone calls to a particular person would fall into this category.

7.    It is acknowledged that the subsequent single-judge decisions of Starkey v Commonwealth Director of Public Prosecution [2013] QDC 124 and Cox v Commissioner of Police [2013] QDC 278 which have questioned the breadth of the approach taken in Ogawa following the handing down of the High Court decision Monis. However, in considering the comments relating to ‘harassment’ in Monis, it is necessary to have regard not just to what was said but the context in which it was said. The offence in Monis was against s.471.12 of the Criminal Code and which deals with the use of a postal service. Although the wording in s.471.12 of the Criminal Code is virtually identical to that in subsection 474.17, it does not have the benefit of subsection 473.4 of the Criminal Code, which sets out how to determine whether material is offensive in respect of telecommunications offences in Part 10.6 of the Criminal Code. This meant that the court in Monis, in determining the question of an ‘offensive’ use of a postal service, applied the general reasonable person objective standard, against the broader background of the implied freedom of communications.

[Footnote references omitted]

86    In conformity with views expressed by Lander J in von Einem v Griffin at 138, the Attorney conceded that a later restatement of the law “may require the revisiting of a previous decision or conviction”.

87    It is quite plain from Cox, at [23], that His Honour Judge Long SC, whose considerable knowledge and experience in criminal law and practice is well-known in Queensland, considered that the observations made in R v Ogawa in relation to harassing may require reconsideration in light of Monis:

[23]    Also, the breadth of the approach taken in R v Ogawa may require consideration in the light of the subsequent decision of the High Court in Monis v R. Although made in the context of direct consideration of the issue of offensiveness, not only did the approach of the majority observe that “a communication which has the quality of being menacing or harassing can be seen to be personally directed and deliberately so,” it was further observed that: “the words ‘menacing’ and ‘harassing’ imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety.”

[Emphasis added, footnote reference omitted]

88    The judge who decided Starkey was His Honour Judge Dorney QC, who has since retired from the District Court. His Honour’s reputation for excellence in many areas of the law was well-known in Queensland at the time of his appointment and only enhanced by his judicial service. Why that was so is, with respect, well exemplified by the erudite analysis in Starkey of the ramifications of Monis in relation to s 474.17 of the Criminal Code. His Honour stated, at [3]:

[3]    Although the learned Magistrate referred to the words of the relevant section, there was no discussion of any kind about the precise nature (i.e. according to a wide or narrow interpretation) of the use alleged to be “menacing, harassing or offensive”. Given the narrow nature of the interpretation approved of by the joint judgment in the High Court, the learned Magistrate erred in his approach in not considering the seriousness of the use. Furthermore, contrary to Crowther v Sala, he relied upon “subjective” evidence – finding that a particular recipient’s concerns were “genuine” - when what was required was proof of such use that “reasonable persons” would regard the conduct as being, in all the circumstances, of the relevant type and that that required an “objective assessment of the likely impact of (the) conduct”: per McMurdo J, with whom Muir J (as he then was) agreed, at 135 [42]. It is recognised that the Queensland appeal decision was primarily concerned with the “fault element” (meaning that, following that objective assessment, it must also be proved that the defendant “either intended that it be so or was reckless as to that fact”): at 136 [47].

[Emphasis added, footnote reference omitted]

What followed in Starkey was an elaborate consideration by Dorney DCJ of how the subject appeal from a Magistrates Court fell to be determined in light of Monis. Of particular present relevance, given the analysis offered by the Attorney’s Department in the “Summary” quoted above is the following part of Dorney DCJ’s consideration, at [12]:

Correct meaning of “menacing, harassing or offensive”

[12]    Given the 3:3 outcome in Monis, (and its consequences) it is to the joint judgment of Crennan, Kiefel and Bell JJ that recourse is had to determine the content of the relevant tests. It is acknowledged that each of the remaining 3 separate judgments also accepted a narrow definition of the relevant wording. It must be said, from the outset, that no judgment in Monis held other than the relevant standard to be applied to the alleged use “is the view of a reasonable person taking into account all the relevant circumstances”: for instance, at [261]. Additionally, considering Monis in more detail, it needs to be acknowledged that the offence in question in that case that was alleged was pursuant to s 471.12 (which dealt with “a postal or similar service”, although, virtually identical wording is otherwise used in both provisions). Additionally, for s 474.17, unlike s 471.12, s 473.4 required certain matters to be taken into account in determining whether reasonable persons would regard particular material, or a particular use, of a carriage service being in all the circumstances “offensive”, such matters including “the general character of the material” and “the standards of morality, decency and propriety generally accepted by reasonable adults”. As was remarked upon in the joint judgment, it may be observed that many of the matters raised for consideration by s 473.4 would be taken into account in the application of the reasonable persons’ standard in s 471.12: at [263]. Finally, in this regard, the question in the High Court concerned the constitutional validity of s 471.12. Therefore, the matter of whether reasonable persons would regard the content of the communications under consideration there as relevantly “offensive” was not a matter which fell to be determined there: at [255]. Even so, the context of the provision involves more than the mere causing of the (menace, harassment or) offence “to the recipients” and, while the characterised use can arise from the content, the method of the use is also relevant: at [261] and [288]. Taking all those factors into account, it would appear that the nature of the actual recipient, or recipients, is relevant to the objective determination.

89    In the present case, the Attorney adopted the position evident in the “Summary” and directed his submissions to the end of my accepting that analysis. But as Dr Ogawa’s submissions correctly recognised, for this Court on a judicial review application to reach a definitive conclusion on the correctness of her Monis case based request for a reference would be to usurp the role of an appellate court on a reference. Once again, if such a request were obviously frivolous the Court might uphold a like conclusion which had been reached by the Attorney in declining to refer a case and so dismiss a judicial review application. But that is not the present case. Dr Ogawa has, as she correctly identified as long ago as 2014 when lodging her petition, the benefit of two considered District Court judgments, each of which deliberately proceed on the basis that what was stated in Monis was relevant by analogy to s 474.14 of the Criminal Code and which support the adoption of a “narrow” view, rather than the “wide” view apparent in R v Ogawa. Having regard to the passage in Monis cited above and to Cox and Starkey, it is arguable that in summing up to the jury in Dr Ogawa’s trial and in dismissing her appeal against conviction, an incorrect, prejudicial view was taken of the meaning of harassing. In turn, it is arguable that the evidence did not reasonably support convictions on a narrow view of “harassing”. So the error in approach by the Attorney in relation to whether to refer a case is material.

90    Taking up an analysis offered to the Attorney by his department, it was also submitted on behalf of the Attorney that even if it were the case that the narrow definition of “harassment” was the applicable standard, it is very likely that Dr Ogawa’s evidenced conduct fell in any event within the narrower view stated in Monis. But the answer to this is that the following riposte made by Dr Ogawa in her submissions in reply is, for the reasons which she gives, at least reasonably arguable:

37.    First, in respect of the alleged “harassing” telephone calls, Keane JA refers in R v Ogawa [2009] QCA 307 at [129] to the “apparently random” nature of the telephone calls. Such finding fails to satisfy the requirement by Crennan, Kiefel and Bell JJ in Monis (2013) 249 CLR 92 at [310] that: “a communication which has the quality of being menacing or harassing can be seen to be personally directed and deliberately so” (emphasis added). (Petitioner’s Response, para 81.)

38.    Secondly, at the Applicant’s trial, the prosecution relied solely on the “quantity and frequency” of the telephone calls as constituting the offence under s 474.17(1) of the Criminal Code (Cth) with no evidence led as to the content of any of the calls. In Monis, Crennan, Kiefel and Bell JJ said (at [310]) that the words menacing and harassing “imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety” (emphasis added). Without evidence as to content of any of the telephone calls, this element could not be made out. (Petitioner’s Response, para 82.)

39.     Thirdly, as to the Petitioner’s emails, they were directed to multiple recipients and therefore not “personally directed and deliberately so” (Monis at [310]). Furthermore, there was no evidence at trial of “a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety” (Monis at [310]) (emphasis added). (Petitioner’s Response, para 83)

91    What follows is that, in this regard also, the Attorney’s decision not to refer Dr Ogawa’s case to the Queensland Court of Appeal pursuant to s 672A of the Queensland Criminal Code, as applied by s 68 of the Judiciary Act, was affected by a material jurisdictional error.

92    For completeness, I should record that there are some observations in the recently decided Minister for Home Affairs v Ogawa to what might be the fate of any reference. It is not apparent that the Full Court had the benefit of argument about the test to be applied in deciding whether or not to refer a case to an appellate court under a provision such as s 672A of the Queensland Criminal Code, much less of the detail of the argument which Dr Ogawa proposed to advance having regard to the observations in Monis and the way in which those observations had later been understood in Starkey and Cox or even that the Court, in its original jurisdiction, had reserved judgment on the question of whether the respondent’s decision not to refer Dr Ogawa’s case was attended with jurisdictional error. So far as the present proceedings are concerned, the observations are, at best, obiter and, in the circumstances just related, of no weight. Neither party has sought to re-open argument in the present case so as to rely upon or, as the case may be, distinguish the observations. Neither have I considered it either necessary or even appropriate to seek such submissions as those observations do not and cannot dictate the fate of Dr Ogawa’s application to quash the decision not to refer her case. I do not consider it either necessary or appropriate in these proceedings to make any further reference to those observations.

93    It follows from the foregoing that Dr Ogawa is entitled to the declaratory relief indicated and to the quashing of the decision not to refer her case to the Queensland Court of Appeal.

Associate:    

Dated:    28 June 2019