Bayley v Nixon and Victoria Legal Aid
[2015] VSC 744
•18 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 04259
| ADRIAN ERNEST BAYLEY | Plaintiff |
| v | |
| JOHN NIXON (in his capacity as an independent reviewer appointed pursuant to s 18 of the Legal Aid Act 1978 (Vic)) | First defendant |
| - and - | |
| VICTORIA LEGAL AID | Second defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 December 2015 |
DATE OF JUDGMENT: | 18 December 2015 |
CASE MAY BE CITED AS: | Bayley v Nixon and Victoria Legal Aid |
MEDIUM NEUTRAL CITATION: | [2015] VSC 744 |
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JUDICIAL REVIEW – jurisdictional error – applications for legal assistance – applicant aged 44 years and a convicted murderer already serving a sentence of imprisonment for life with a non-parole period ending in 35 years – in three trials for other offences, applicant subsequently sentenced by County Court to new non-parole period ending in 43 years (beyond his likely life expectancy) – two of three appeals likely to be successful, resulting in reduction of new non-parole period to about 40 years – decision of independent reviewer rejecting legal assistance for appeals against convictions and sentences to Court of Appeal – whether legally unreasonable – whether irrelevant considerations taken into account – whether legally open to find, and take into account, that applicant would probably not get parole in about 40 years – whether impermissible speculation – discussion of principle of objective and non-arbitrary consideration of applications - Legal Aid Act 1978 (Vic) s 24(1) and (4), Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 25(2) and (4), 38(1).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr S Holt QC and Mr P Smallwood | James Dowsley & Associates |
| For the first and second defendants | Ms F McLeod SC and Mr A Aleksov | Victoria Legal Aid |
| For the Attorney-General, intervening | Mr R Niall SC, Solicitor-General for Victoria, and Mr P Doyle | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
In three trials before a judge a jury in the County Court of Victoria, Adrian Ernest Bayley, who is aged 44 years, was convicted of several offences, including rape, against three female victims. He was sentenced for these crimes on 28 May 2015. At that time, he was serving a sentence of life imprisonment with a non-parole period of 35 years imposed by Nettle JA in this court on 19 June 2013 for the rape and murder of Gillian Edie Meagher. For the offences of which he was found guilty in the County Court, her Honour Judge Pullen sentenced Mr Bayley to imprisonment for 18 years (to be served concurrently with the life sentence) and imposed a new non-parole period of 43 years. In setting that new non-parole period, her Honour acknowledged that, having regard to Mr Bayley’s age, it most likely extinguished any hope of him being released from prison on parole.
Supported by advice from senior and junior counsel representing him at the trials in the County Court, Mr Bayley has sought leave to appeal to the Court of Appeal against the convictions imposed in the first and third trials and the sentences imposed in all three trials. He also applied to Victorian Legal Aid, the second defendant, for legal assistance under the Legal Aid Act 1978 (Vic) in relation to those appeals[1] (he received legal assistance for the trials). When his applications for legal assistance for the appeals were refused, he exercised his right under s 35(1) of the Legal Aid Act to ask for the decisions to be independently reviewed.
[1]It is expected that the Court of Appeal will hear and determine the applications for leave to appeal and the appeals at the same time.
The review was conducted by John Nixon, the first defendant, who is an experienced retired judge of the County Court. The decision of the independent reviewer was that it was likely that the Court of Appeal would allow Mr Bayley’s appeals against the convictions recorded in the first and third trials and, in consequence, that the convictions would be quashed. He also decided that the quashing of the convictions would result in a new and lower non-parole period being set. He considered that the appeal against the sentence imposed in the second trial would fail.
Despite being of those opinions, the independent reviewer confirmed the decisions to refuse to grant legal assistance to Mr Bayley. In relation to the condition in s 24(1)(b) of the Legal Aid Act that it must be ‘reasonable having regard to all relevant matters to provide the legal assistance’, he referred to observations by an independent reviewer in another case that ‘there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited’. The independent reviewer in the present case did not expand on his reference to this observation or explain its relevance to Mr Bayley’s case.
Mr Bayley now seeks judicial review of the decision of the independent reviewer under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The grounds of the application for judicial review are that:
(1)The decision was unreasonable in that no reasonable decision maker could have made it.
(2)The independent reviewer took into account an irrelevant consideration.
(3)The independent reviewer made a decision that was unlawful by failing to comply with the duty in s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to give proper consideration to human rights.
Mr Bayley seeks relief under grounds (1) and (2) upon the basis that the decision of the independent reviewer was invalid for jurisdictional error or, in the alternative, for error of law on the face of the record. He seeks relief under ground (3) upon the basis that the decision was invalid for error of law upon the face of the record. As submitted by VLA, the onus of establishing these grounds rests upon Mr Bayley.
The court acknowledges and expresses its appreciation for the pro bono assistance provided to Mr Bayley by the lawyers representing him. The issues raised by the proceeding in the court are important and those lawyers have performed a significant service to the court and the community in bringing them forward.
Conviction and sentence in Supreme Court of Victoria (Nettle JA)
Mr Bayley pleaded guilty to the rape and murder of Ms Meagher at Brunswick on 22 September 2012 for which he was convicted after pleading guilty. These were heinous crimes for which he was sentenced by Nettle JA on 19 June 2013 to life imprisonment with a non-parole period of 35 years. In doing so, his Honour rejected the submission of the prosecution that the sentence should be life imprisonment without parole. While seeing ‘little reason now … to suppose that [Mr Bayley] will ever be rehabilitated’,[2] his Honour did not ‘exclude altogether the chance of improvement’.[3] His Honour said that, as bad as the crimes were, Mr Bayley ‘will have the opportunity in gaol to strive for rehabilitation and I propose to set a non-parole period as an incentive for you to try’.[4] According to the minimum term fixed by Nettle JA, Mr Bayley would be eligible for parole in June 2048 when aged 76 years.
[2]R v Bayley [2013] VSC 313 (19 June 2013) [48].
[3]Ibid [49].
[4]Ibid.
In sentencing Mr Bayley, Nettle JA was bound by s 11(1)(a) of the Sentencing Act 1991 (Vic) to fix a non-parole period (that is, a minimum term of imprisonment before being eligible for release on parole) unless his Honour was satisfied that this was not appropriate. As his Honour was not so satisfied, he fixed a non-parole period. The function of a sentencing judge in fixing that period was described by Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ in Deakin v The Queen[5] in the following terms:
The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[6]
Therefore it may be taken that Nettle JA fixed 35 years as the minimum period that justice required Mr Bayley to serve having regard to all the circumstances of his offences.
[5](1984) 58 ALJR 367.
[6]Ibid (citation omitted).
In Bugmy v The Queen,[7] Dawson, Toohey and Gaudron JJ held that the practical effect of fixing a non-parole period is that, in Victoria, the parole authority ‘may, but of course need not, grant the prisoner parole’.[8] Mason CJ and McHugh JJ said that the authority ‘may … in the exercise of its discretion, grant parole’.[9] The sentence of Nettle JA created the possibility, although not the certainty, of Mr Bayley being released on parole at aged 76 years.[10] His position in having a hope for release from prison on parole, albeit in old age, is to be contrasted with the position in DPP v Hunter,[11] for example, where the prisoner was sentenced to life imprisonment without parole. In sentencing Mr Bayley, Nettle JA was bound by s 5(2AA) of the Sentencing Act not to take into account that Mr Bayley might or might not be released on parole once he becomes eligible. Under the system operating in Victoria, that is entirely a matter for the discretion of the parole authority.
[7](1990) 169 CLR 525.
[8]Ibid 536.
[9]Ibid 530.
[10]See also R v Denyer [1995] 1 VR 186, 196 (Southwell J).
[11][2013] VSC 440 (21 August 2013) (Bell J).
Conviction and sentence in County Court of Victoria (Judge Pullen)
The charges later brought against Mr Bayley were specified in three different indictments and pertained to three different victims, as follows:
·it was alleged in indictment C1309028.4 that one day between 31 October 2000 and 1 December 2000 Mr Bayley committed offences, including rape, against a named victim
·it was alleged in indictment C1309028.2 that on 5 April 2012 he committed offences, including rape, against a named victim
·it was alleged in indictment C1309028.3 that on 15 July 2012 he committed offences, including rape, against a named victim
In each of the separate trials that were conducted, Mr Bayley pleaded not guilty to the charges. He was found guilty of every charge. The verdicts of the jury in the third trial were all majority verdicts.
Judge Pullen conducted a plea hearing on 27 May 2015 in respect of all of the charges of which Mr Bayley was found guilty in the three trials. The next day, her Honour imposed a total effective sentence of imprisonment for 18 years. Pursuant to s 14(1) of the Sentencing Act, she fixed a new non-parole period of 43 years, commencing on the day of sentence.
In pronouncing that sentence, Judge Pullen stated that there was ‘little before me to suggest [Mr Bayley] will ever be rehabilitated’. Senior counsel for Mr Bayley had submitted that his current non-parole period should not be extended. In connection with but rejecting that submission, her Honour agreed with senior counsel that it ‘was not possible to assess [Mr Bayley’s] level of risk at the time [he] would be eligible for parole at age 76’ (that is, under the sentence imposed by Nettle JA). Taking the sentencing principles into account, her Honour set the new non-parole period of 43 years. In doing so, she observed that this extended period ‘will most likely ensure you have likely forfeited your right to hope or expectation of eventual release from prison’. These observations reflected the fact that Mr Bayley was aged 43 years at the time of this sentence. Whereas he would have been eligible for parole in 2048 at age 76 years under the sentence imposed by Nettle JA, he will not be eligible for parole until 2058 at aged about 86 years under the sentence imposed by her Honour. It was common ground that he would likely not live that long.
Application to Victoria Legal Aid for legal assistance
On 28 April 2015, after the verdicts of guilty of the juries in the first and third trial but before being sentenced by Judge Pullen, Mr Bayley applied to VLA for legal assistance under s 23(1) of the Legal Aid Act. Those applications were made in relation to his applications to the Court of Appeal for leave to appeal against the convictions recorded in the first and third trials. He did so upon the basis that the verdicts of the jury in both of those trials was unreasonable or could not be supported having regard to the evidence. Then and later, advice was given by senior and junior counsel for Mr Bayley supporting his applications.
On 1 June 2015 and after being sentenced by her Honour, Mr Bayley applied for legal assistance in relation to applications for leave to appeal against the sentences imposed in all of the three trials. He did so upon the basis that the period of the new non-parole period was manifestly excessive. Advice was given by senior and junior counsel supporting these applications.
In a decision-making process ending on 4 June 2015, the Managing Director of VLA personally considered the various applications for legal assistance. Upon grounds that are no longer material, he refused each of Mr Bayley’s applications for legal assistance: that is, the applications for assistance in relation to his applications for leave to appeal against the convictions recorded in the first and third trials and his application for assistance in relation to the applications for leave to appeal against the sentences imposed in the first, second and third trials.
On 5 June 2015, Mr Bayley requested reconsideration of these refusal decisions. Under s 34(2) of the Legal Aid Act, requests for reconsiderations are determined by the original decision maker. On 9 June 2015 and upon the same grounds that are no longer material, the Managing Director confirmed the decisions to refuse legal assistance.
Application to independent reviewer
On 9 June 2015 and pursuant to s 35(1) of the Legal Aid Act, Mr Bayley made application to the independent reviewer for review of the refusal decisions of the Managing Director, upon reconsideration, confirming the refusal of his applications for legal assistance. In determining the application for independent review, the function of the independent reviewer was independently to review the reconsideration decisions of the Managing Director.[12]
[12]Legal Aid Act s 19(1)(a); see also s 19(1)(b).
The independent reviewer decided that, despite Mr Bayley’s having reasonable grounds for appeal, it would not be reasonable to provide him with legal aid. Signed hand-written reasons for decision dated 17 June 2015 were supplied by the independent reviewer. These have been treated by the parties to the proceeding in this court as the ‘short statement of the reasons for the decision’ of the independent reviewer required under s 33(1)(b) of the Legal Aid Act.[13]
[13]For reasons associated with the course of the decision making process, VLA informed the court that it was not submitting in this proceeding that Mr Bayley had to exhaust the alternative remedies of reconsideration and review under ss 34(1) and 36(1) of the Legal Aid Act before seeking relief by way of judicial review (cf Kwan v Victoria Legal Aid [20] [2007] VSC 122 (26 April 2007) [26] (Bell J)).
The independent reviewer’s statement of reasons reads as follows:
1.I consider that it is likely that the Court of Appeal will allow Mr Bayley’s appeal against his conviction in trial 1 … and also in trial 3 ... If that prediction is correct those convictions will be quashed.
2.Assuming those convictions are quashed the total effective sentence and the global non parole period will be reviewed and reduced to a lower term.
3.I consider that the appeal against sentence in trial 2 … is unlikely to succeed.
4.The critical question so far as the present applications are concerned relate to the ‘reasonableness of providing legal assistance’ i.e. the state reasonableness test. I have considered the matters detailed in s 24(4) Legal Aid Act in making my assessment as to whether it is reasonable to provide legal assistance for Mr Bayley’s appeal given that I am satisfied that there are reasonable grounds for his appeal.
5.I accept the independent reviewer’s observations in the Dupas appeal that there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited and taking all relevant matters into account I find that it is not reasonable to provide Mr Bayley with legal assistance for his appeals.
An issue arises in the proceeding as to the basis upon which the independent reviewer made his decision and as to whether his statement of reasons can be read in the light of the materials that were before him. It is convenient here to set those materials out.
The independent reviewer did not identify the materials that were before him when he made the decision (and I am not suggesting that he should have). The affidavit evidence in the proceeding filed on behalf of VLA showed that the body of material was large. It included memoranda dated 28 May 2015, 2 June 2015 and 5 June 2015 from the Managing Lawyer of Assignments Criminal Law to the Managing Director of VLA in relation to Mr Bayley’s applications for legal assistance. It was common ground that the applications were refused by the Managing Director upon the basis of these memoranda.
I think it is sufficient for present purposes to refer to the memorandum dated 28 May 2015. It addressed Mr Bayley’s application for legal assistance in relation to the appeals against the conviction recorded in the first and third trials. After referring to background matters and giving a brief summary of the facts, the memorandum discussed the applicable law, provided an opinion in relation to Mr Bayley’s applications for legal assistance and estimated the cost of the assistance sought.
In relation to the applicable law, the memorandum referred to the relevant provisions of the Legal Aid Act and the guidelines that have been promulgated. I will discuss these presently.
In relation to the opinion provided as to Mr Bayley’s applications, the memorandum addressed the applicable tests and the statutory provisions and guidelines. The opinion offered was that:
·Mr Bayley satisfied the requirement that he had been sentenced to an immediate term of imprisonment
·he satisfied the requirement that there was a reasonable prospect that the Court of Appeal would reduce the period of the non-parole period (because there were reasonable grounds for concluding that, on appeal, the convictions that had been recorded in the first and third trials would be quashed and a lower non-parole period would be imposed)
·he did not satisfy the requirement that it must be reasonable to provide legal assistance, having regard to all of the circumstances, including any benefit or detriment that may accrue to him or the public
Of particular relevance in the present proceeding is the opinion offered in relation to the reasonableness test. Among other things, the memorandum stated that, even if the convictions recorded were quashed and a lower non-parole period imposed, ‘there is very little prospect that Mr Bayley will ever be released on parole’ and ‘it is highly probable that Mr Bayley will serve his life sentence’. According to the opinion, this meant that the practical significance of the quashed convictions for Mr Bayley would be ‘sharply diminished’ and the ‘maximum obtainable benefit’ that he would obtain was ‘comparatively low’ when compared with ‘the vast majority of convicted persons appealing convictions for similar offending’.
The memorandum went on to refer to comments made by the independent reviewer in the matter of the Dupas appeal (a summary of which was given in an appendix to the memorandum). This was a matter in which the applicant was seeking legal assistance in relation to an appeal when he was already serving a sentence of imprisonment for life without parole for previous offences. According to the memorandum, the independent reviewer in that case ‘acknowledged that there is a an important public interest in ensuring public confidence in VLA’s stewardship of the legal aid fund to allocate limited public funds in a manner which maximises public benefit across a broad spectrum of worthy legal cases’. As can be seen from the statement of reasons of the independent reviewer in the present case, he seems to have adopted at least part of this observation.[14]
Discretionary entitlement to legal assistance under the Legal Aid Act
[14]It was common ground in this proceeding that the independent reviewer did not have the statement of reasons of the independent reviewer in the Dupas appeal but only the summary in the memorandum, although it (and other materials pertaining to the Dupas appeal) were provided to the parties and the court in this proceeding.
Mr Bayley contends that, in relation to the review of his applications for legal assistance under the Legal Aid Act, the independent reviewer made a jurisdictional error, an error of law on the face of the record and a decision that was unlawful because it failed to give proper consideration to human rights under the Charter. The grounds of judicial review that rely upon the existence of jurisdictional error and error of law upon the face of the record are based upon contentions that the decision of the independent reviewer to reject Mr Bayley’s applications for legal assistance was legally unreasonable and took into account an irrelevant consideration.
As made clear by the High Court in Minister for Immigration and Citizenship v Li,[15] consideration of such grounds and contentions requires proper interpretation of the governing legislation,[16] in this case the Legal Aid Act. In the words of French CJ, the judgments in that case confirm that ‘[e]very statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred’.[17] The discretion is also confined by a requirement imputed into the legislation by the courts, unless excluded, that the decision-maker must exercise the discretion reasonably.[18] What reasonableness requires is to be determined by reference to the ‘true construction of the statute’[19] and its subject matter, scope and purpose, which French CJ described as ‘the framework of rationality’ of the legislation.[20]
[15](2013) 249 CLR 332 (‘Li’).
[16]Ibid 348 [23] (French CJ), 364 [67] (Hayne, Kiefel and Bell JJ).
[17]Ibid 348 [23] (footnote omitted); see also 366 [72] (Hayne, Kiefel and Bell JJ).
[18]Ibid 349 [24], 350 [26] (French CJ), 362 [63] (footnote omitted) (Hayne, Kiefel and Bell JJ), 370 [88] (Gageler J).
[19]Ibid 364 [67] (Hayne, Kiefel and Bell JJ).
[20]Ibid 350 [26].
With those principles in mind, it must immediately be recognised that Warren CJ, Nettle and Redlich JJA held in Slaveski v Smith[21] that entitlement to legal assistance under the Legal Aid Act is discretionary and the discretion to grant that assistance is conferred upon VLA. The conditions that must be satisfied are specified in s 24(1) as follows:
[21](2012) 34 VR 206, 213 [16], 216 [28]-[29].
(1) VLA may provide legal assistance to a person if—
(a)in its opinion the person is in need of that legal assistance by reason that he is unable to afford the full cost of obtaining from a private legal practitioner the legal services in respect of which the legal assistance is sought; and
(b)it is reasonable having regard to all relevant matters to provide the legal assistance.
Under s 24(2), only para (a) applies in relation to persons charged with indictable and like offences. That was Mr Bayley’s position in the trials in the County Court for which he was granted legal assistance. The present proceeding concerns the decision of the independent reviewer to refuse his applications for legal assistance in relation to the appeals to the Court of Appeal. To those applications both paras (a) and (b) applied.
There was no dispute in this proceeding that Mr Bayley satisfied the needs test in s 24(1)(a). He was a person serving a sentence of imprisonment with no private income or assets and clearly indigent.
The question was whether the reasonableness test in s 24(1)(b) was satisfied. As can be seen, the reasonableness criterion is not specified so as to depend upon VLA’s subjective satisfaction in that regard but rather upon the objective presence of reasonableness. In making that assessment, it is necessary to have regard to ‘all relevant matters’. Section 24(4) expands upon this requirement. It provides:
(4)In the making of a decision whether it is reasonable in all the circumstances to provide legal assistance to a person, regard shall be had to all relevant matters, including—
(a)the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided;
(b)in the case of assistance in relation to a proceeding in a court other than a criminal appeal—whether the proceeding is likely to terminate in a manner favourable to the person; and
(c)in the case of assistance in relation to a criminal appeal—whether there are reasonable grounds for the appeal.
It can be seen that the matters to which regard must be had are specified inclusively. Only paras (a) and (c) were relevant in the present case. It is not in dispute that para (c) was satisfied in relation to the appeals against the convictions recorded and the sentences imposed in the first and third trials but not in relation to the appeal against the sentence imposed in the second trial. In issue was the application of para (a).
Section 9(a) of the Legal Aid Act requires VLA to determine guidelines in relation to applications for legal assistance under s 24(1), having regard to the funds available. The funds available to VLA are undoubtedly finite and come mainly from State and Commonwealth government sources. These funds comprise the Legal Aid Fund under s 41(1).
VLA has made guidelines under s 9(a) in relation to applications for legal assistance in relation to applications to the Court of Appeal for leave to appeal against conviction or conviction and sentence. In that connection, Guideline 7.6 states that assistance may be granted where:
· the applicant was sentenced to a term of immediate imprisonment or detention (unless the applicant is a child)
· there is a reasonable prospect that the court would reduce the total effective sentence, youth detention order, non-parole period or period prior to recognisance release order (unless the applicant is a child)
· there are reasonable grounds for the appeal, which is demonstrated by either:
o the verdict of the jury being unreasonable or not supported having regard to the evidence
o a substantial miscarriage of justice was caused by an error or irregularity in or in relation to the trial
o a substantial miscarriage of justice was caused by any other reason
· it is reasonable to provide legal assistance, having regard to all of the circumstances including any benefit or detriment that may accrue to the applicant or to the public.
Again, the issue in this proceeding concerns the application of the guideline relating to the reasonable test (see last dot point).
The general objectives of VLA should be noted. By s 4, these are:
(a)to provide legal aid in the most effective, economic and efficient manner;
(b)to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the state;
(c)to provide to the community improved access to justice and legal remedies;
(d)to pursue innovative means of providing legal aid directed at minimising the need for individual legal services in the community.
VLA stressed paras (a) and (b); Mr Bayley stressed para (c).
Under s 6(1)(a) and (b), the functions of VLA are to provide legal aid (which includes legal assistance: s 2(1)) in accordance with the Legal Aid Act and to control and administer the Legal Aid Fund. In performing these functions, VLA has certain duties under s 7(1). These include the duty to:
(a)ensure that legal aid is provided in the most effective, efficient and economic manner and in a manner which dispels fear and distrust;
…
(c)subject to and in accordance with any legal aid arrangement and the agreements and arrangements made between the Commonwealth and the State under section 49 from time to time—
(i)determine or vary priorities in the provision of legal aid as between classes of persons and classes of matters or both; …
It can be seen from the language of s 7(1)(c)(i) that the duty of determining and varying priority in the provision of the legal assistance between classes of persons and matters (or both) is objectively expressed. Consistently with this requirement for objectivity, VLA can, under s 24(4)(a), prioritise granting assistance towards applicants deriving real utility or benefit from a successful outcome in the proceeding in question. Utility and benefit are objective discrimen. This reflects the scheme, purposes and objects of the legislation. However, the relevance of and capacity to consider the subjective and personal attributes of individual applicants would appear to be limited. While the provisions of s 24(1)(a) specify that applicants for assistance must face assessment of their means, this too is an objective discrimen. By contrast, the legislative provisions do not specify that applicants must face assessment of their character. There is not, as such, any character test. Objective, criterion-based and non-arbitrary exercise of the discretion to grant legal assistance is an essential element of the ‘framework of rationality’ of the Legal Aid Act, to use the words of French CJ in Li.[22]
[22](2013) 249 CLR 332, 350 [26].
Legal aid is closely connected with human rights. For the poor and disadvantaged who are most vulnerable to having their human rights infringed, legal aid can be indispensable for obtaining redress against the infringement and vindication of their rights through the legal process. VLA and independent reviewers are public authorities under the Charter (s 4(1)(b)) and, under s 38(1) of the Charter, must act compatibly with and make decisions giving proper consideration to the human rights in the Charter.[23]
[23]Unless a statutory or other law requires otherwise: s 38(2) of the Charter.
Illustrating the close relationship between legal aid and human rights, including for persons charged with criminal offences, the provisions of the Charter are connected with the provisions of the Legal Aid Act. Drawing upon arts 14(3) and (4) of the International Covenant on Civil and Political Rights,[24] sub-ss 25(2)(d), (e) and (f) and (4) of the Charter make provision in relation to the provision of legal assistance to persons charged with a criminal offence and the review of convictions and sentences by a higher court. In relation to persons charged with a criminal offence, s 25(2) specifies (among other things) the following minimum guarantees:
[24]International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)).
(d)to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and
(e)to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(f)to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; …
In relation to the review of convictions and sentences, s 25(4) provides:
Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.
As can be seen, where persons charged with a criminal offence meet the eligibility requirements, access to aid under the Legal Aid Act is a human right specified in s 25(2)(d), (e) and (f) of the Charter.
Moreover, reflecting the grounds of discrimination in the Equal Opportunity Act 2010 (Vic) (see the definition of ‘discrimination’ in s 3(1) of the Charter), the right to legal aid to those who qualify is a right that must be enjoyed ‘without discrimination’ (s 25(2) of the Charter)). The right in s 8(3) of the Charter to equality before the law, equal protection of the law without discrimination and equal and effective protection against discrimination is also relevant. In relation to consideration of applications for legal assistance under the Legal Aid Act, these human rights aspects of legal aid reinforce the objective, criterion-based and non-arbitrary nature of the decision-making process that is required.
Therefore, as with all applicants for legal assistance, Mr Bayley stood equally before the law and the consideration of his applications had to be impartial, objective and not arbitrary; further, it would have been unlawful for the independent reviewer to reject the applications for legal assistance because of the notoriety that he attracted by reason of being convicted and sentenced for the heinous rape and murder of Ms Meagher. It was correct and appropriate for VLA so to concede and I proceed upon the basis that, reflecting the proper interpretation of the Legal Aid Act and the applicable legal principles, this was common ground. With this in mind, I now turn to the grounds of judicial review, as pressed by Mr Bayley.
Jurisdictional error (unreasonableness and irrelevant consideration)
In reliance upon the decision of the High Court in Li[25] to which I have already referred, Mr Bayley submitted that the decision of the independent reviewer was legally unreasonable in the sense that it lacked an ‘evident and intelligible justification’.[26] It was also submitted that the reviewer failed to apply the reasonableness test in sub-ss 24(1) and (4) of the Legal Aid Act and took into account irrelevant considerations, namely that ‘there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited’. It is convenient to deal with these two grounds together.
[25](2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ).
[26]Ibid 367 [76] (Hayne, Kiefel and Bell JJ).
It is necessary to look at the judgments in Li more closely. I can begin by drawing attention to Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[27] In the well-known judgment of Lord Greene MR (Somervell LJ and Singleton J agreeing), his Lordship briefly discussed reasonableness as a long-standing ground of jurisdictional error and pithily stated that it applied where decision makers ‘come to a conclusion so unreasonable that no reasonable authority could ever have come to it’.[28] Prior to Li, Australian authorities tended to place emphasis upon this statement, with its somewhat restrictive connotations for the function of judicial review on this ground, rather than upon earlier authorities, both in England and this country, which explained that ground and that function more comprehensively.
[27][1948] 1 KB 223 (‘Wednesbury’).
[28]Ibid 234.
For a deeper understanding of unreasonableness as a ground of judicial review if discretionary decision-making for jurisdictional error, the judgments in Li returned to English and Australian authorities pre-dating Wednesbury, including the decision of the House of Lords Sharp v Wakefield[29] and of the High Court House v The King.[30] Of Sharpe, Hayne, Kiefel and Bell JJ in Li said this:[31]
[29][1891] AC 173, 179 (House of Lords) (‘Sharp’), referred to in Li (2013) 249 CLR 332, 349 [24] (French CJ), 363 [65] (Hayne, Kiefel and Bell JJ).
[30](1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ) (‘House’), referred to in Li (2013) 249 CLR 332, 364 [68], 367 [76] (Hayne, Kiefel and Bell JJ), 376 [110] (Gageler J).
[31](2013) 249 CLR 332, 363 [65]; see also 349 [24] (French CJ).
In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be ‘exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself’.[32] It is pointed out in Wade and Forsyth[33] that the legal conception of discretion dates from at least the sixteenth century. In Sharp v Wakefield,[34] Lord Halsbury LC had referred to Rooke's Case,[35] in which it was stated that the discretion of commissioners of sewers ‘ought to be limited and bound with the rule of reason and law’.
Of House, the judgments in Li referred to the judgment of Dixon, Evatt and McTiernan JJ where their Honours stated the principles that applied in relation to an appeal against the exercise of a judicial discretion in the following way:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[36]
[32][1891] AC 173, 179.
[33]HWR Wade and CJ Forsyth, Administrative Law (OUP, 10th ed, 2009) 293-4.
[34][1891] AC 173, 179.
[35](1597) 5 Co Rep 99b, 100a [77 ER 209, 210].
[36](1936) 55 CLR 499, 504-5.
The judgments of French CJ[37] and Hayne, Kiefel and Bell JJ[38] in Li also refer to the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation[39] which contains similar observations to those made in the judgment in House in which his Honour joined. As pointed out in the judgment of Hayne, Kiefel and Bell JJ in Li, Avon was delivered not long after Wednesbury was decided at a time when it was the practice of the High Court of Australia to follow decisions of the Court of Appeal in England settling the law in a particular area.[40]
[37](2013) 249 CLR 332, 350 [27].
[38]Ibid 364 [68].
[39](1949) 78 CLR 353, 360 (‘Avon’).
[40](2013) 249 CLR 332, 364 [68].
All of the justices in Li emphasised the confined nature of the court’s jurisdiction to conduct judicial review, a jurisdiction that does not include the function of remaking the decision on the merits.[41] The jurisdiction of the court is to ensure that the power is exercised within lawful bounds and, in particular, that the applicable statutory provisions are not abused. For example, as we have seen, French CJ stated that discretionary power had to be exercised within the ‘framework of rationality’[42] that is established by the statute. Decision-makers enjoyed an ‘area of decisional freedom’ but this was not ‘construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense’.[43] Hayne, Kiefel and Bell JJ stated that decision-makers had an area of ‘genuinely free discretion’, but it resided ‘within the bounds of legal reasonableness’.[44] Their Honours went on to say that ‘[u]nreasonableness is a conclusion that may be applied to a decision that lacks an evident and intelligible justification’.[45] Citing the judgment of Bastarache and LeBel JJ in the Supreme Court of Canada in Dunsmuir v New Brunswick,[46] Gageler J explained the function of the supervisory jurisdiction as follows:[47]
Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.[48]
[41]Ibid 350-1 [28], 351 [30] (French CJ), 363 [66] (Hayne, Kiefel and Bell JJ), 375 [106] (Gageler J).
[42]Ibid 350 [26].
[43]Ibid 351 [28].
[44]Ibid 363 [66] (footnote omitted).
[45]Ibid 363 [76].
[46][2008] 1 SCR 190 (McLachlin CJ, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ) (‘Dunsmuir’).
[47](2013) 249 CLR 332, 375 [105].
[48]Dunsmuir [2008] 1 SCR 190, 220-221 [47] (Bastarache and LeBel JJ).
As pointed out by Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh,[49] the judgments in Li may be understood as explaining two different contexts in which the standard of legal unreasonableness may be employed: (1) ‘a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process’;[50] and (2) ‘as an inference to be drawn because the court cannot identify how the decision was arrived at’.[51] As intended by their Honours, I see these categories as (with respect) helpful analytical tools rather than categories of jurisdictional error in themselves, for the judgments in Li stressed the importance of the underlying unifying principle of jurisdictional error, particularly legal unreasonableness,[52] rather than the categories which, somewhat confusedly, have developed under that general heading over time.
[49](2014) 231 FCR 437 (‘Singh’).
[50]Ibid 445 [44].
[51]Ibid.
[52]See (2013) 249 CLR 332, 350 [26] (French CJ), 365 [70] (Hayne, Kiefel and Bell JJ).
In relation to the application of the principles relating to judicial review for jurisdictional error on grounds of unreasonableness expounded in Li, Allsop CJ, Robertson and Mortimer JJ in Singh drew attention to the importance of examining the reasons for decision of the decision-maker where these were available[53] and, when examining whether the decision had an ‘intelligible justification’, the importance of scrutinising the factual circumstances in which the power was exercised.[54] I too would emphasise the need to do so in appropriate cases. It was one of the restrictive aspects of the principle of unreasonableness as thought to have been stated in Wednesbury that it was inappropriate for judges to engage with the reasons for decision of the decision maker and the facts of the case too closely. Of course, the court must not allow such examination and scrutiny to drift away from judicial review, which is the function of the court, towards original decision-making on the merits, which is the function of the holder of the discretion.
[53](2014) 231 FCR 437, 446 [47].
[54]Ibid 447 [48].
In the present case, the independent reviewer provided written reasons for decision, which I have set out. As already noted, these were provided pursuant to the obligation in s 33(1)(b) of the Legal Aid Act to furnish ‘a short statement of the reasons for the decision’. As submitted by VLA, these reasons should ‘not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[55]
[55]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
We have seen that the High Court made clear in Li that the scope of the power of a discretionary decision-maker is to be identified from the governing legislation, properly interpreted. I have set out the relevant provisions of the Legal Aid Act already. In summary, the independent reviewer had a discretion to provide legal assistance to Mr Bayley if the means and reasonableness tests in s 24(1)(a) and (b) were satisfied. It is the reasonableness test in sub‑para (b) that was in issue. In applying the reasonableness test, s 24(4) specified (inclusively) certain mandatory considerations. It was the benefit/detriment test in para (a) that was in issue. In determining Mr Bayley’s applications, the independent reviewer was required to have regard to Guideline 7.6, which was made under s 9(a).
I accept the submissions made by VLA about the width of the discretion conferred upon the independent reviewer by sub‑ss 24(1) and (4) in relation to the determination of Mr Bayley’s applications for legal assistance. It was for him to determine the applications. It is not for the court to be reviewing the decision of the independent reviewer on the merits upon the ground, for example, that the court does not agree with the determination or the factual findings that were made.
As we have seen, the reasons for decision of the independent reviewer state the conclusion that:
·Mr Bayley’s appeals against the convictions sentences recorded in the first and third trials would likely succeed and the convictions would likely be quashed in consequence
·the appeal against the sentence imposed in the second trial was unlikely to succeed
·after the likely quashing of the convictions recorded in the first and third trial, the total effective sentence and global non‑parole period would be reviewed and reduced to a lower term
Having stated those conclusions, the independent reviewer went on to state that the ‘critical question’ related to the reasonableness test.
In relation to that test, the independent reviewer referred to the matters specified in s 24(4) of the Legal Aid Act. He went on to refer to the observation of the independent reviewer in the Dupas appeal that ‘there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited’. He concluded that ‘[t]aking all relevant matters into account I find that it is not reasonable to provide Mr Bayley with legal assistance for his appeals’. These matters were not expanded upon in the reasons.
Having regard to the conclusions reached by the independent reviewer in relation to Mr Bayley’s prospects of success in the appeals against the convictions recorded in the first and third trials and, further, the specification by the independent reviewer of the ‘critical question’, I conclude that the outcome of the review turned upon the application of the reasonableness test in s 24(1)(b) and upon no other discretionary considerations. As a matter of proper interpretation of the statutory provisions, I do not rule out the availability of other considerations in appropriate cases. But in this case I conclude that there were none.
This conclusion leads logically to a focus upon the independent reviewer’s decision in relation to the reasonableness test. As I have noted, this test included (inclusively) the benefit/detriment consideration in s 24(4)(a) and the matter specified in the last dot point in Guideline 7.6. Here a difficulty is encountered. The reasons of the independent reviewer do not explain why the benefit/detriment test was applied with a negative result. His conclusion that Mr Bayley’s non‑parole period would likely be lowered as a result of his likely successful appeals against conviction seems to point powerfully in the other direction, especially given the significance of that consideration to Mr Bayley as a prisoner serving a life sentence with the hope of parole towards the end of his expected life. There is nothing in the reasons to suggest that some public detriment constituted an objective and relevant heavier counter‑weight.
It is necessary to consider the reference by the independent reviewer to the observations of the independent reviewer in the Dupas appeal and whether this reference supplies a reason for concluding that the independent reviewer in the present case properly applied the reasonableness test. Against Mr Bayley’s submissions, I would conclude that it was relevant for the independent reviewer to take into account the desirability of ensuring public confidence in VLA’s stewardship of limited public funds. This consideration is to be associated with the objectives of the VLA in s 4(a) and (b) and its duties in s 7(1)(a) and (c)(i) (see above). But consideration of this matter cannot be allowed to give rise to arbitrary decision‑making or the application of a de facto character test, for such would be inconsistent with the objective standard of decision‑making that is demanded by the provisions of the Legal Aid Act (see above).
So understood, the reference by the independent reviewer to public confidence in stewardship by VLA of its limited funds could not, of itself, justify a negative conclusion in relation to the application of the reasonableness test to Mr Bayley’s applications. Maintaining that confidence in the stewardship by VLA of its limited funds was a consideration applying equally to every application for legal assistance and there was nothing in the reasons or the objective factual circumstances to show how it particularly applied to Mr Bayley’s applications such as to result in them being rejected. Consistently with the ‘framework of rationality’[56] established by the Legal Aid Act, Mr Bayley’s application could not randomly (which is to say not arbitrarily) be selected for rejection by reference to this consideration. Considered within the four corners of the reasons supplied by the independent reviewer, ‘the result itself bespeaks error’.[57] It lacks an ‘evident and intelligible justification’[58] and could not be other than arbitrary.[59] It is a decision from which error in the nature of legal unreasonableness must be inferred within the second category identified in Singh by reference to the judgments in Li (see above).
[56]Li (2013) 249 CLR 332, 350 [26] (French CJ).
[57]Ibid 369 [85] (Hayne, Kiefel and Bell JJ).
[58]Ibid 367 [76] (Hayne, Kiefel and Bell JJ).
[59]Ibid 352 [31] (French CJ).
With some force, VLA contends that the reasons for decision of the independent reviewer should be read with, and taken to have adopted, the memoranda of the Managing Lawyer of Assignments Criminal Law to which I have referred. With near-equal force, Mr Bayley submits that there is no warrant for attributing adoption of the views expressed in the memoranda to the independent reviewer.
Against Mr Bayley’s submissions, I find as a fact[60] that the independent reviewer did adopt the particular reference in the memoranda to the observations of the independent reviewer in the Dupas appeal. This is because the independent reviewer referred to those observations in his reasons for decision and very likely read and adopted them as summarised by the Managing Lawyer. The observations were summarised in the memorandum dated 28 May 2015 as follows:
the independent reviewer acknowledged that there is an important public interest in ensuring public confidence in VLA’s stewardship of the legal aid fund to allocate limited public funds in a manner which maximises public benefit across a broad spectrum of worthy legal causes. In view of the diminished obtainable benefit for Mr Dupas, the independent reviewer was of the opinion that sections of the public would hold legitimate doubts as to whether the provision of assistance for Mr Dupas is an appropriate use of funds.[61]
[60]Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 (9 March 2007) [16]-[18] (Heerey, Stone and Edmonds JJ).
[61]Footnote omitted.
It can be seen that the independent reviewer in the Dupas appeal made the observation about ensuring public confidence in VLA’s stewardship of public funds in the context of considering the ‘diminished obtainable benefit’ available to Mr Dupas in the appeal for which he was seeking legal assistance. As an experienced retired judge of the County Court, I would attribute to the independent reviewer in the present case knowledge of the fact that, at the relevant time, Mr Dupas was already serving a sentence of imprisonment for life without parole and that it was to this that the independent reviewer was referring.
Again a difficulty is encountered. Mr Bayley was not in Mr Dupas’s position because he was not, and is not, serving a sentence of imprisonment for life without parole. As we have seen, the sentence imposed by Nettle JA was imprisonment for life with a non‑parole period of 35 years. The sentence imposed by Judge Pullen was a total effective sentence of imprisonment for 18 years (to be served concurrently with the life sentence) and a new non‑parole period of 43 years. The sentence of Nettle JA left open the hope of release on parole towards the end of Mr Bayley’s expected life (at aged 76 years). The sentence imposed by Judge Pullen effectively extinguished that hope (because he would not be eligible for parole until about aged 86 years).
It was common ground in this proceeding that, if the Court of Appeal were to quash the convictions recorded in the first and third trials, as thought likely, it would probably set a new global non-parole period for Mr Bayley based upon the sentence imposed in the second trial. That new global non-parole period would probably be about 5 years longer than his current non-parole period. Taking into account that the period would be relevant to Mr Bayley towards the end of his life (at about aged 81 years) and the sentencing remarks made by Judge Pullen (see above), it is reasonable to conclude that the difference between the two non-parole periods might be the difference between him having and not having a hope for actual parole towards the end of his expected life. I have already referred to the personal significance of this for Mr Bayley.
Taking into account those objective facts, the reference to and adoption by the independent reviewer of the observations made by the independent reviewer in the Dupas appeal do not resolve the difficulty with the reasons for decision to which I have referred. Comparing Mr Bayley with Mr Dupas is not an objective and non-arbitrary basis for concluding why Mr Bayley’s application, rather than others, should be selected for particular rejection because of the need to maintain public confidence in VLA stewardship of its limited funds. I would repeat the conclusion to which I came in this regard. Even taking into account the independent reviewer’s reference to and adoption of the observations of the independent reviewer in the Dupas appeal, the decision of the independent reviewer in the present case is not consistent with the ‘framework of rationality’[62] in the Legal Aid Act. The ‘result itself bespeaks error’[63] and lacks an ‘evident and intelligible foundation’. [64] It could only be arbitrary. [65] It is a decision from which legal unreasonableness must be inferred. It remains a decision from which error in the nature of legal unreasonableness must be inferred within the second category identified in Singh by reference to the judgments in Li (see above).
[62]Li (20013) 249 CLR 332, 350 [26] (French CJ).369 [85] (Hayne, Kiefel and Bell JJ).
[63]Ibid 369 [85] (Hayne, Kiefel and Bell JJ).
[64]Ibid 367 [76] (Hayne, Kiefel and Bell JJ).
[65]Ibid 352 [31] (French CJ).
That brings me to the final basis upon which the decision of the independent reviewer was defended by VLA. In submissions that were supported by the Solicitor General, VLA submitted that the independent reviewer should be taken to have adopted those parts of the memoranda of the Managing Lawyer in which she expressed the opinions to which I have referred. To repeat, these were that ‘it is unlikely that Mr Bayley will ever be released on parole’ and ‘it is highly probable that Mr Bayley will serve his life sentence’. These opinions were primarily based upon Mr Bayley’s utterly appalling criminal record for crimes of violence (among others). It was submitted that it was open to the independent reviewer, as the holder of the discretion to grant or refuse legal aid and the statutory finder of the relevant facts, to adopt and take those opinions into account.
I reject VLA’s submission that the independent reviewer should be taken to have adopted the opinions expressed in the memoranda of the Managing Lawyer. As submitted for Mr Bayley, the reasons for decision of the independent reviewer do not refer to these opinions. It does not necessarily follow from the independent reviewer’s reference to and adoption of the stewardship consideration, nor from the passage in the summary of the observations of the independent reviewer in the Dupas appeal, that the independent reviewer in the present case adopted the opinions of the Managing Lawyer. In other important respects the independent reviewer’s opinion was different and more favourable to Mr Bayley than that of the Managing Lawyer. For example, the independent reviewer was of the view that Mr Bayley’s appeals against conviction in the first and third trials were likely to succeed and a new and lower non-parole period was likely to be set, not just that he had reasonable prospects in these regards. Also, in the absence of convincing evidence, I would find it very difficult to attribute to an experienced and well-respected retired judge of the County Court the view that, in about 40 years, a person eligible for parole in the position of Mr Bayley would probably not get that parole.
In case I am wrong in so excluding from consideration the opinion of the Managing Lawyer, I should determine whether Mr Bayley’s prospects of obtaining parole in about 40 years was a relevant consideration and whether, on the evidence, it was open for the Managing Lawyer to express the conclusion on this matter that she did.
I accept the submission of VLA that neither Nettle JA nor Judge Pullen decided that Mr Bayley would get parole at the end of the non-parole period, but only that he would be eligible for such parole. I have already referred to the legal character of sentencing decisions in relation to the fixing of a non-parole period.
Further, I accept the submission of VLA that it is frequently necessary for it to come to conclusions about what might happen in the future. It is often necessary, for example, for it to consider what the prospects of success of a particular application might be (see s 24(4)(c) of the Legal Aid Act). I accept the submission of the Solicitor-General that consideration of matters such as prospects of success and other relevant future matters are for VLA, as the statutory finder of fact, to determine, not this court. But it is one thing to recognise that VLA, in the exercise of its statutory powers, may permissibly form opinions about future matters, such as prospects of success, which are capable of reasonably informed judgment; it is quite another to think that that it can form opinions about future matters which are capable neither of being known nor of reasonably informed judgment.
I expressly decline to go into the considerations for and against whether Mr Bayley would be granted parole in about 40 years. The parole authority at the time will have to exercise its discretion in this regard upon the facts and circumstances then obtaining. In my view, it is simply not possible to make a reasonably informed judgment now about what the facts and circumstances will be so far in the future and how the authority will then exercise its discretion. With respect, such a consideration is no more than mere speculation. I reject VLA’s submission that it can speculate upon this matter in the proper exercise of its statutory discretion. I think it is the antithesis of proper to exercise a statutory discretion by reference to an opinion about a matter that is not capable of reasonably informed judgment.
Further, the likelihood of Mr Bayley being released on parole in about 40 years is not a relevant consideration because it is not capable of being known. Even worse, engaging in speculation about this question operates to obscure a consideration that is known and relevant, namely the hope that Mr Bayley has for release on parole at the end of his minimum term and towards the end of his expected life, taking into account the likely result of the appeals. Because his prospects of release on parole in about 40 years is not capable of being known, it was neither relevant nor open as a matter of law for the Managing Lawyer to express a conclusion in relation to the matter. The opinions of the Managing Lawyer were neither legally relevant nor a fact that the independent reviewer was entitled to adopt and take into account. It follows, of course, that it would have been equally speculative for Mr Bayley to assert, as a positive consideration, a likelihood of being released on parole in about 40 years (which he did not assert). The most that can be said is that he would be eligible to apply at that time, and therefore he had a valid hope of being released on parole, but it is not possible to speculate either way on what the parole authority would decide.
If, contrary to my view, the independent reviewer did take into account the prospects of Mr Bayley being granted parole in about 40 years and adopt the opinions of the independent reviewer, this supplies added reason for concluding that his decision was legally unreasonable, but for the specific error of taking into account an irrelevant consideration, being an underlying jurisdictional error in the decision-making process within the first category identified in Singh by reference to the judgments in Li (see above).
I therefore conclude that the decision of the independent reviewer to reject Mr Bayley’s applications for legal assistance must be quashed for jurisdictional error on the ground of legal unreasonableness. The applications for legal assistance must be remitted for reconsideration to a (different) independent reviewer according to law.
Unlawfulness and the Charter
Having regard to the conclusion that I have reached with respected to grounds (1) and (2), it is unnecessary to decide this ground.
Conclusion
It is not in dispute in this proceeding that all persons are equal before the law and the Legal Aid Act requires consideration of applications to be objective, criterion-based and non-arbitrary. It is not lawful to reject an application for legal assistance, including for legal assistance in relation to a criminal appeal, upon the sole ground that the applicant is a notorious and unpopular individual who has already been convicted of and sentenced for heinous crimes.
It was in dispute in the proceeding whether the independent reviewer who refused Mr Bayley’s applications had properly exercised his discretion to do so. The main ground relied upon was that the decision was legally unreasonable. This is a limited ground of judicial review that is available where it is established, for example, that the result of the decision bespeaks error, that the decision lacks an evident and intelligible foundation and that it could only have been arbitrary. In such cases, a conclusion of legal unreasonableness may be inferred.
The undisputed facts were that it was likely that Mr Bayley would succeed in two appeals to the Court of Appeal of this court against convictions recorded and sentences imposed in the County Court, resulting in the lowering of a new non-parole period to a point in time closer to the non-parole period set under his existing sentence. His hope of release upon parole towards the end of his expected life was effectively extinguished by the convictions and sentences of the County Court that he will likely successfully appeal to the Court of Appeal.
The independent reviewer accepted that Mr Bayley had passed the means test, would likely succeed in the two conviction and sentence appeals and, therefore, would probably obtain a reduction in the new non-parole period (that is, a smaller increase in the existing non-parole period). But he decided that it would not be reasonable for legal assistance to be granted to Mr Bayley for the appeals.
In this application for judicial review, I have concluded for the reasons more fully explained in the judgment that it is not possible to reconcile the decision of the independent reviewer with the provisions of the Legal Aid Act. Taking into account the facts that were established and accepted, it is not possible to understand why the independent reviewer decided that it was not reasonable to grant legal assistance to My Bayley for the appeals. It has been established that the result of the decision bespeaks error, that the decision lacks an evident and intelligible foundation and that the decision could only have been arbitrary. Therefore I infer that the decision was legally unreasonable. It is thereby invalid.
The decision of the independent reviewer will be set aside and Mr Bayley’s applications for legal assistance will be remitted to a different independent reviewer for reconsideration according to law.
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