Case: von Einem v Griffin (1998) 72 SASR 110
Outcome: considered
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. These conclusions are, in my opinion, consistent with conclusions reached by Lander J as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 at 138-140 concerning the analogous reference power upon the assumption (contrary to the conclusion he reached) that the South Australian Attorney's decision to decline a reference request was amenable to judicial review. His Honour stated: Judicial review would only be available to review the decision whether or not to exercise the discretion and then the subsequent exercise of that discretion to determine whether the exercise of the discretion conformed with the policy scope and objects of the Act. What, then, is the policy or scope and objects of s369. The section has no application unless a petition for mercy has been presented to the Governor. It therefore assumes that the Petitioner has exhausted all of his or her legal rights and that all appeals have been exhausted and the conviction and the sentence must stand according to law. The section further assumes that there may be circumstances, notwithstanding that all appeals have been exhausted, where it would be appropriate to refer this matter back to the Court for further hearing as an appeal. In that respect the section perhaps contemplates that fresh evidence has emerged which might make the conviction unsafe or unsatisfactory. It also contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction. The policy, purpose and object of s369 is to ensure, so far as practicable, that no person is the victim of a miscarriage of justice. The section has been included to allow for circumstances of the kind to which I have referred so that even if a person has exhausted all that person's rights of appeal, that person will not be the victim of a miscarriage of justice, if later circumstances show that the conviction should not stand for any reason including that it is unsafe and unsatisfactory. It is within that policy and purpose that the Attorney General must act. When a petition is presented to the Governor and referred to the Attorney General apart from advising on the question of mercy, generally, the policy and purpose of s369 is to have the Attorney General apply his mind as to whether or not it would be appropriate to invoke the Court's jurisdiction yet again, notwithstanding that the appeal process has been exhausted, so that the Court may determine whether, in any way, there has been a miscarriage of justice in relation to that petitioner. The policy and purpose of this section is to require the Attorney General to apply his mind as to whether it would be appropriate to refer the matter to the courts in either of the ways mentioned in s369 in case there has been a miscarriage of justice. Any matter relevant to the policy, scope or objects of the section. ... Did The Attorney General Apply The Correct Legal Test? In considering the matters raised in the petition the Attorney had to adopt a criterion to determine whether the material provided could give rise to the invocation of either of the powers contained in s369. He was advised that unless the material referred to in the petition raised a sufficient doubt about the correctness of the decision the appropriate response was to advise His Excellency that it was not proposed to take any further action in respect of the petition. In considering whether the material raised in the petition raised a sufficient doubt about the correctness of the decision he was further advised that the material would not raise such a doubt unless it appears reasonably possible that a miscarriage of justice has occurred. The Attorney General accepted that advice and on the evidence acted upon the criterion to the extent, that unless the material disclosed the reasonable possibility of a miscarriage of justice his proper response was to advise His Excellency to take no further action upon the petition. The plaintiff complained about the test adopted by the Attorney General which he said amounted to a misunderstanding of the legal principles involved in exercising his discretion under this section. Initially the plaintiff argued that the adoption of such a test was an error of law, but I think that it was otherwise said that the criterion adopted was so unreasonable that no sensible person could have adopted the test. If the matter had come before a judge of this Court, after conviction and sentence, for the purpose of obtaining leave to appeal to the Full Court of the Supreme Court, then the test which would have been applied by that judge was whether the ground or grounds of appeal, raised on the application for leave to appeal, were arguable. The plaintiff argued, on this application, that that is the test which the Attorney General should have asked himself in relation to the matters raised on the petition. It was said that to approach the matter any other way amounted to an error of law and was so unreasonable that no sensible person could have adopted the test. Of course, the proposition that a ground of appeal is arguable begs the question: Arguable in what sense? It must be arguable that there has been a miscarriage of justice. It is right, I think, as Mr Abbott submitted, that a single judge in this State will grant leave to appeal from a conviction or sentence if that judge is satisfied that it is arguable there has been a miscarriage of justice. The practice book in this State (Criminal Law South Australia, Butterworths; Judge Lunn) states at para 7115.3: "The test for leave is whether it is at least arguable that the exercise of the trial judge's discretion has miscarried or there could be any real element of injustice to the appellant if leave was refused; McDonald v R (1992) 85 NTR 1." In McDonald v R , Asche CJ relied upon a decision of the Full Court of the Supreme Court of Victoria in R v Broadway (1957) VR 398 and concluded that on an application for leave to appeal the appropriate test should be 'at least an arguable case' (at 3). Asche CJ, however, accepted that it was inappropriate in applications for leave to appeal to lay down rigid and exhaustive criteria. He suggested that another test could be 'that some possible though real element of injustice might be thought to occur if leave were refused' (at 4). He said that the purpose of a provision requiring leave to appeal is to discriminate between the obvious cases where it is clear that the appeal cannot succeed and to allow the others to go forward. Accepting the decision in McDonald v R and the matters to which Asche CJ has referred, it cannot be said that the criteria for granting leave to appeal is necessarily appropriate in determining whether or not a matter should be referred to this Court pursuant to either of the limbs of s369. There is a point of distinction between an application for leave to appeal and a reference under s 369. A matter which is being considered by the Attorney General under s 369 has already been the subject of appeal and all of the rights of appeal have already been exhausted. In any event, it is not self evident to me that the test that it is arguable that there was a miscarriage of justice is any less onerous than the test asked by the Attorney General of himself, i.e. whether there was a reasonable possibility of a miscarriage of justice. It seems to me that the tests, in a sense, ask the same question. A point will not arguably show that there has been a miscarriage of justice unless there is a possibility that there has been a miscarriage of justice and, of course, that possibility must be reasonable. What then of the Minister's consideration of the Applicant's request for a reference?