Australian Capital Territory v Gregory Raymond Cavanagh - [2004] ACTSC 107

AUSTRALIAN CAPITAL TERRITORY v GREGORY RAYMOND CAVANAGH [2004] ACTSC 107 (18 October 2004)

ADMINISTRATIVE LAW - Judicial review - Inquiry into conviction of prisoner pursuant to s 475 of Crimes Act 1900 (ACT) - Doubt concerning convicted person's fitness to plead - Determination by investigating Magistrate to refuse the Crown in the Right of the Australian Capital Territory leave to appear before the Inquiry - Administrative Decisions (Judicial Review) Act 1989 (ACT) - Ambit of judicial review - Meaning of "decision" - Magistrate's discretionary considerations - Undesirable to "fragment" administrative decision-making – Ruling on leave to appear lacking character of finality - Ruling on leave to appear procedural in nature - Application for review dismissed as incompetent.

ADMINISTRATIVE LAW- Apprehended bias - Principles of procedural fairness inapplicable to decision made by the Executive pursuant to s 475 of the Crimes Act 1900 (ACT).

The Crimes Act 1900 (ACT) s 475
Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5

Australian Capital Territory (Self-Government Act) 1988 (Cth) ss 7, 36 and 37

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 discussed
Eastman v R (2000) 214 CLR 1 discussed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed
Yates v Wilson (1989) 168 CLR 338 cited
FAI Insurances v Winneke distinguished
DPP (ACT) v Eastman referred to

No. SCA 66 of 2004

Judge: Tamberlin J
Supreme Court of the ACT
Date: 18 October 2004

IN THE SUPREME COURT OF THE       )
  )          No. SCA 66 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:AUSTRALIAN CAPITAL TERRITORY
Applicant

AND:GREGORY RAYMOND CAVANAGH
First Respondent

DAVID HAROLD EASTMAN

Second Respondent

ORDER

Judge:  Tamberlin J
Date:  18 October 2004
Place:  Sydney (Heard in Canberra)

THE COURT ORDERS THAT:

The application is dismissed with costs.

IN THE SUPREME COURT OF THE       )
  )          No. SCA 66 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:AUSTRALIAN CAPITAL TERRITORY
Applicant

AND:GREGORY RAYMOND CAVANAGH
First Respondent

DAVID HAROLD EASTMAN

Second Respondent

REASONS FOR JUDGMENT

This is an application by the Crown in the right of the Australian Capital Territory (“the Crown”) for review of a ruling by Mr Cavanagh SM, (“the Magistrate’), made on 11 October 2004, refusing leave to the Crown to appear in an Inquiry into the matter of the fitness to plead of the second respondent, Mr Eastman, during the whole or any part of his trial for the murder of Colin Winchester (“the Inquiry”).

The Crown application asserts that the Crown is aggrieved by the decision because of a number of factors. First, it administers criminal justice in the ACT. Second, the purpose of the Inquiry under s 475 of the Crimes Act 1900 NSW (As amended in its application in the Australian Capital Territory) (“the Crimes Act”) is to inform the Executive Government (“the Executive”) of a possible miscarriage of justice relating from the trial of Mr Eastman and where appropriate to set to rest public disquiet about that trial. Third, it conducted the prosecution of Mr Eastman on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] ACTSC 107
Decision Date

CaseChat Overview and Summary

The case of Australian Capital Territory v Gregory Raymond Cavanagh concerns an application by the Crown, representing the Australian Capital Territory, seeking judicial review of a decision made by a Magistrate during an inquiry. The Crown's application was predicated on the refusal by the Magistrate to grant the Crown leave to appear and participate in the inquiry. The relief sought was an order of review under the Administrative Decisions (Judicial Review) Act 1977 (ACT). The primary legal issue for the court was whether the Magistrate's refusal to grant the Crown leave to appear constituted a "decision" that could be subject to judicial review under the ADJR Act. The court considered the definition of "decision" within the Act, including the scope of what constitutes a reviewable decision and whether the Magistrate's refusal fell within this definition.

The court examined the statutory language and the discretion afforded to the Magistrate under section 475 of the relevant legislation. It noted that the Magistrate had broad discretionary powers to manage the inquiry without any statutory obligation to grant leave to the Crown to appear. The court found that the refusal to grant leave was not a decision within the meaning of the ADJR Act, as it did not amount to a definitive conclusion or choice by the Magistrate that could be reviewed. Instead, the refusal was part of the ongoing process of managing the inquiry, which was within the Magistrate's broad discretion. Consequently, the court held that the refusal did not constitute a "decision" that could be subject to judicial review.

The court dismissed the application for review, concluding that there was no reviewable decision as defined by the ADJR Act. The court emphasised that it was not its role to substitute its judgment for that of the Magistrate in the exercise of such discretion, particularly in the context of managing an inquiry. The decision underscores the limits of judicial review in relation to discretionary decisions made in the course of administrative processes. The court's reasoning highlights the importance of distinguishing between administrative actions that are reviewable and those that are not, particularly where broad discretionary powers are conferred upon an administrative officer.

No orders were made in favour of the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the outset of this application a question arises as a consequence of submissions by Mr Eastman as to whether there is any “decision” which can be reviewed. Mr Eastman submitted that the application is incompetent because there is no reviewable “decision”. The Further Amended Application for Review filed in Court on 13 October 2004 by the Crown is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (“the ADJR Act”). The decision challenged is the Magistrate’s order “refusing to grant leave to the Crown in right of the Australian Capital Territory to appear in the Inquiry ...”. The relief sought is an order pursuant to s 17(1)(a) of the ADJR Act which only relates to an order for review of a decision. Section 3(1) of the ADJR Act relevantly defines the expression “decision to which this Act applies” to mean a decision of an administrative character made, whether in the exercise of a discretion, or not, under an enactment. Section 3(2) provides that a reference to the “making of a decision” includes a reference to a number of acts which include, for example, making an order, making a determination, and failing to make a decision. Section 3(3) provides that where provision is made for the making of a report before a decision is made in the exercise of a power under the act, the making of such a report is to be taken to be the making of a decision. Accordingly, the report of the judge under s 375(4) will be a decision. Section 3(4)(c) provides that a reference to conduct engaged in, for the purpose of making a decision, includes a reference to the doing of any act or thing preparatory to the making of the decision including the taking of evidence or the holding of an inquiry or investigation. Section 5 of the ADJR Act which is the basis of the present application before me provides that a person aggrieved by a decision may apply to the Supreme Court for an Order of Review in respect of the decision on a number of specified grounds. The principles to apply when considering whether there is a reviewable decision are not in dispute and were considered by Mason CJ, in the context of the Commonwealth Administrative Decisions Judicial Review Act (1977) which is for present purposes relevantly identical. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336-337, Mason CJ discussed these principles in the following terms: In the present case the refusal of the Crown’s application for leave to appear and participate at the outset of the Inquiry is not a “decision” under the ADJR Act. I reach this conclusion taking into account a number of considerations. The first matter to note is the broad language of s 475 in relation to the role of the Magistrate and lack of any right or entitlement to appear. The terms of s 475(1) do not require the Magistrate to grant leave to any person or body to appear. Persons who were witnesses at the trial and whose character is affected have a right to appear as provided for in s 475(3). The discretion conferred is given to the Magistrate in the widest language, such that the Magistrate is to carry out the collection of information in such a way that the Magistrate in his discretion considers appropriate. The operative discretion to grant permission to appear is indicated by the reference to “may” in relation to the summoning and examining of witnesses. The word “may” imports both the discretion to summons persons, and the way in which, and by whom, they are to be examined. No prescription is made as to the procedure in relation the exercise of this function of collecting material information for transmission to the Judge. It is for the Magistrate and not this Court, to decide the manner in which the Inquiry is most expeditiously and efficiently to be carried out so that the material information is best collected. None of the legislation to which I was referred gives any right of appearance to the Crown in the right of the ACT. It would have been simple, if the legislature had so intended, to confer an entitlement on persons or bodies to appear at such inquiry to have expressly referred to such parties by description. It has chosen to do so in s 475(3) but not otherwise.

Ratio Decidendi

Legal Principle Established

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