Holzinger v Attorney-General (Qld) & Anor [2020] QCA 165
PARTIES:
WERNER LEO HOLZINGER (applicant) v ATTORNEY-GENERAL OF QUEENSLAND (respondent) ATTORNEY-GENERAL OF THE COMMONWEALTH (intervener)
FILE NO/S:
Appeal No 10945 of 2019 SC No 3941 of 2019
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave/Judicial Review
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 August 2020
DELIVERED AT:
Brisbane
HEARING DATE:
11 May 2020
JUDGES:
Sofronoff P and Morrison and Mullins JJA
ORDER:
Dismiss the application with costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – EXCLUDED DECISIONS – where in 2015 a jury found the applicant guilty of three counts of rape and four counts of indecent treatment of a child under 16 years – where the applicant was unsuccessful in appealing his convictions – where special leave to appeal was refused by the High Court – where the applicant presented a petition to the Governor seeking a pardon or, alternatively, that his petition be referred to the Court of Appeal under s 672A of the Criminal Code (Qld) – where the Official Secretary to the Governor informed the applicant that the Governor had decided not to pardon him – where the Attorney-General for the State of Queensland advised that she had determined not to refer his petition to the Court of Appeal – where the applicant applied under the Judicial Review Act 1991 (Qld) for review of the Attorney-General’s refusal to refer his case to the Court of Appeal – where the applicant submits that a decision not to refer his case was a “decision of an administrative character made under an enactment” and he is an aggrieved person because he is a person “whose interests are adversely affected by the decision” – where the respondent submits that her decision is not amenable to judicial review under Part 3 of the Act or, alternatively, because the applicant has failed to make out his grounds – where the intervener submits that the application should be dismissed upon the limited basis that the decision is not amenable to review on the grounds stated in the application – whether the Attorney-General’s refusal to refer whole or part of the case to the Court of Appeal is a decision of an administrative character made under an enactment – whether the applicant is a person aggrieved – whether the decision of the Attorney-General is amenable to judicial review
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where in 2015 a jury found the applicant guilty of three counts of rape and four counts of indecent treatment of a child under 16 years – where the applicant was unsuccessful in appealing his convictions – where special leave to appeal was refused by the High Court – where the applicant presented a petition to the Governor seeking a pardon or,…
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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AGLC
Holzinger v Attorney-General (Qld) [2020] QCA 165
Case
[2020] QCA 165
Decision Date
CaseChat Overview and Summary
The applicant, Holzinger, sought judicial review of the Attorney-General for Queensland's decision not to refer his petition for a pardon or, alternatively, that his petition be referred to the Court of Appeal under section 672A of the Criminal Code (Qld). Holzinger had been found guilty of three counts of rape and four counts of indecent treatment of a child under 16 years in 2015. After losing his appeal and being refused special leave to appeal by the High Court, he petitioned the Governor for a pardon or for referral to the Court of Appeal. The Governor declined to pardon him, and the Attorney-General also declined to refer the case to the Court of Appeal. Holzinger sought to challenge these decisions under the Judicial Review Act 1991 (Qld).
The primary legal issues before the court were whether the Attorney-General's decision not to refer Holzinger's petition was a "decision of an administrative character made under an enactment" and whether Holzinger was a person aggrieved by this decision. Additionally, the court needed to determine whether the decision was amenable to judicial review. Holzinger argued that the decision was both administrative and under an enactment, and that he was aggrieved because his interests were adversely affected. The Attorney-General contended that the decision was not amenable to judicial review under Part 3 of the Act, or alternatively, that Holzinger had failed to establish his grounds for review. The intervener argued that the application should be dismissed because the decision was not amenable to review.
The court found that the Attorney-General's decision not to refer Holzinger's petition was not a decision of an administrative character made under an enactment. The court reasoned that the power to refer a petition to the Court of Appeal was not derived from an enactment but was a discretionary power exercised by the Attorney-General. The court held that such discretionary decisions are not subject to judicial review under the Judicial Review Act. Furthermore, even if the decision were administrative, the court found that Holzinger was not an aggrieved person because the decision did not adversely affect his interests in a way that the Act intended to protect. Consequently, the court dismissed the application with costs.