mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gallagher v The Queen [1986] HCA 26 ; (1985-1986) 160 CLR 392
Outcome: considered
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 [1989] HCA 35 ; (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 [1986] HCA 26 ; (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". 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. 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.
Case: Horwitz v Connor [1908] HCA 33 ; (1908) 6 CLR 38
Outcome: cited
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] HCA 33 ; (1908) 6 CLR 38 would bind me to hold, a decision to refuse a pardon is not itself reviewable. 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: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one 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.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 33 ; (1985-1986) 162 CLR 1
Outcome: applied
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 [1986] HCA 33 ; (1985-1986) 162 CLR 1 at 39-40. 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. 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.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
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] HCA 6 ; (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. 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. 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]
Case: O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
Outcome: cited
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] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (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] HCA 51 ; (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.
Case: Peel v R [1971] HCA 59 ; (1971) 125 CLR 447
Outcome: considered
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] HCA 50 ; (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] HCA 59 ; (1971) 125 CLR 447 ( Peel's Case ). 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] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (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.
Case: Perrier v Kerr (sued in his capacity as Minister for Justice) (VG 865 of 1995, 17 August 1997, unreported)
Outcome: followed
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] HCA 50 ; (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. 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: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one 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.
Case: R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162
Outcome: considered
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] HCA 35 ; (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] HCA 8 ; (2005) 214 ALR 1.
Case: R v Judd [1919] HCA 9 ; (1919) 26 CLR 168
Outcome: cited
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] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (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] HCA 51 ; (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.
Case: R v Martens [2007] QCA 137
Outcome: considered
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. 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. 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.
Case: R v Murphy [1985] HCA 50 ; (1985) 158 CLR 596
Outcome: considered
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] HCA 50 ; (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] HCA 59 ; (1971) 125 CLR 447 ( Peel's Case ).