Li v Attorney General for New South Wales

[2019] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Li v Attorney General for New South Wales [2019] NSWCA 95
Hearing dates:	31 January 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Before:	Basten JA at [1]; White JA at [69]; Brereton JA at [101]
Decision:	Dismiss the application for judicial review of the decision of Harrison J under the Crimes (Appeal and Review) Act 2001 (NSW), Pt 7.
Catchwords:	ADMINISTRATIVE LAW – refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court   ADMINISTRATIVE LAW – judicial review – grounds of review – where decision is substantially similar to a party’s submissions – whether judge failed to consider submissions – whether judge formed the relevant opinion – whether reasons were inadequate – whether justice seen to be done
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 78, 79; Pt 7, Divs 2, 3 Criminal Appeal Act 1912 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Al-Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Australian Securities Commission v Schreuder (1994) 14 ACSR 614 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Beaman v Bond (2017) 254 FCR 480; [2017] FCAFC 142 Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 Bright v Westmoreland County 380 F 3d 729 (3d Cir 2004) Buttrose v Attorney General (NSW) (2015) 324 ALR 562; [2015] NSWCA 221 C v B (2006) 35 Fam LR 285; [2006] Fam CA 513 Calvin v Carr [1979] 1 NSWLR 1 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Carson v Legal Services Commissioner [2000] NSWCA 308 Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital 2011 BCCA 192; 17 BCLR (5th) 253 Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30; [2013] 2 SCR 357 Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 Connell v Auckland City Council [1977] 1 NZLR 630 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Goodwin v Commissioner of Police [2012] NSWCA 379 Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518 James v Surf Road Nominees Pty Ltd [2004] NSWCA 475 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Juneja v Tax Practitioners Board (2017) 72 AAR 407; [2017] FCA 908 Li v R [2014] NSWCCA 341 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 Mifsud v Campbell (1991) 21 NSWLR 725 Moylan v Nutrasweet Co [2000] NSWCA 337 Palmer v Clarke (1989) 19 NSWLR 158 Pettitt v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Pollard v Wilson [2010] NSWCA 68 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7 R v Basha (1989) 39 A Crim R 337 R v Maxwell (1998) 217 ALR 452 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category:	Principal judgment
Parties:	Patrick Lam Li (Applicant) Attorney General for New South Wales (First Respondent) Supreme Court of New South Wales (Second Respondent)
Representation:	Counsel: Applicant self-represented Mr R Yezevski (First Respondent)   Solicitors: Applicant self-represented State Crown Solicitor (Respondents)
File Number(s):	2018/285652
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2018] NSWSC 674 Date of Decision: 28 May 2018 Before: Harrison J File Number(s): 2018/29949

headnote

[This headnote is not to be read as part of the judgment]

On 10 August 2012 the applicant was sentenced to 19 years and 6 months imprisonment, with a non-parole period of 12 years and 3 months, after pleading guilty to supplying a large commercial quantity of a prohibited drug. On 29 January 2018 Mr Li made an application for an inquiry into his sentence under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). On 9 March 2018 the Attorney General filed submissions opposing the inquiry, to which the applicant replied on 30 April 2018. The application was dismissed on 28 May 2018. The reasons given for the decision were substantially similar to the Attorney General’s submissions of 9 March 2018.

The applicant sought judicial review of the decision. The grounds advanced were that (i) the judge had not formed the level of satisfaction required in order to dispose of the proceedings under the Act, (ii) the decision did not take the applicant’s reply submissions in to account, (iii) the decision did not fully address the grounds relied upon by the applicant, (iv) the judge did not consider all of the relevant material and (v) because the reasons of the judge simply repeated the submissions of the Attorney General, justice was not seen to be done.

The Court (Basten and White JJA, Brereton JA dissenting) dismissed the application for review and held:

1. Determination of an application for an inquiry into a sentence under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) is not an exercise of the judicial function: [16], [69].

Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, applied.

2. The reasons provided no basis to find that the judge had failed to form the relevant opinion: [23], [79].

3. The reasons sufficiently demonstrated that the judge did not fail to consider relevant material, specifically the applicant’s submissions in reply, but a failure to do so would not have been material as the reply submissions did not raise new issues: [37], [97], [103].

4. There was no basis for an inference that the judge’s decision involved an inadequate exercise of jurisdiction or failure to bring an independent or impartial mind to decision-making, as (i) the adopted submissions articulated the apparent grounds of the application, (ii) the decision was not judicial in character and (iii) the decision only required consideration of whether a doubt arose in relation to the sentencing rather than a determination of legal and factual issues: [48], [52]-[53], [79], [97].

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 applied.

5. The reasons were not inadequate in their terms: [54], [69], [103].

(Per Basten and White JJA)

6. A requirement that justice “must be seen to be done” is not a free-standing ground of review; its adoption would impose a new obligation on administrative decision-makers: [57], [61], [77].

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 applied.

Sun Alliance Insurance Ltd v Massoud [1989] VR 8; C v B (2006) 35 Fam LR 285; [2006] FamCA 513; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56, considered.

(Per White JA)

7. It is inappropriate to consider if there was a reasonable possibility that a different decision may be reached if the application were to be remitted to a new decision-maker: [71].

(Per Brereton JA)

8. Reasons will be inadequate if justice is not seen to have been done, in that a reasonable person in the position of the unsuccessful party would have a justifiable sense of grievance: [104].

Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Connell v Auckland City Council [1977] 1 NZLR 630; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407; Australian Securities Commission v Schreuder (1994) 14 ACSR 614; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; R v Maxwell (1998) 217 ALR 452; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, applied.

9. Reasons must demonstrate that the decision-maker engaged with and gave independent consideration to the submissions presented, which may not be satisfied where one party’s submissions are substantially reproduced: [132].

Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238; Pollard v Wilson [2010] NSWCA 68; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90; Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518; Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30; [2013] 2 SCR 357; Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital 2011 BCCA 192; 17 BCLR (5th) 253, considered

10. In this instance, the unattributed reproduction of submissions would create the perception to a reasonable person that the application did not receive independent and impartial consideration: [144].

11. This error constituted a constructive failure of jurisdiction which should render the decision void: [153], [163].

Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189; Connell v Auckland City Council [1977] 1 NZLR 630; Mifsud v Campbell (1991) 21 NSWLR 725; Palmer v Clarke (1989) 19 NSWLR 158; GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314, applied.

Judgment

1. BASTEN JA: On 30 May 2011 the applicant, Patrick Lam Li, entered a plea of guilty to a charge of supplying a large commercial quantity of a prohibited drug known as MDP2P. On 10 August 2012 he was sentenced to imprisonment for 19 years 6 months, including a non-parole period of 12 years 3 months to date from 18 March 2009 and to expire on 17 June 2021. The balance of the term was thus 7 years 3 months. On 26 February 2014 the Court of Criminal Appeal granted him leave to appeal against the severity of his sentence, but dismissed the appeal.

2. As the High Court held in Grierson v The King,[1] when the Court of Criminal Appeal “has heard an appeal on its merits and given its decision the appeal cannot be reopened.” [2] There has, however, long been a power to conduct an inquiry into a conviction or sentence, a power which pre-dated the Criminal Appeal Act 1912 (NSW). [3] That power is now found in Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”).

   1. (1938) 60 CLR 431; [1938] HCA 45.

   2.    Grierson at 434 (Rich J); see also Dixon J at 437 (McTiernan J agreeing with Rich and Dixon JJ).

   3. See Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [33]-[40].

3. On 29 January 2018 the applicant filed an application pursuant to Pt 7 of the Appeal and Review Act seeking an inquiry to be conducted by a judge of the Supreme Court with respect to his sentence. The application was referred to Harrison J for consideration. In a decision handed down on 28 May 2018 Harrison J dismissed the application. There is no appeal from such a decision, but the applicant filed a summons on 13 September 2018 seeking judicial review of the decision pursuant to s 69 of the Supreme Court Act 1970 (NSW).

4. The application for judicial review was heard by this Court on 31 January 2019, at which time the applicant appeared in person. The active respondent was the Attorney General (NSW), whose position with respect to the merit of the application will be discussed below. In accordance with the approach adopted in Sinkovich, the Supreme Court of New South Wales, as the relevant statutory decision-maker, was joined as the second respondent to the summons for judicial review. It entered a submitting appearance. [4] There is no need to consider whether it was necessary to join the Court as a party to proceedings in the Court, nor whether such a course is indeed appropriate.

   4. See Sinkovich at [13].

5. Proceedings for judicial review are required to be commenced within three months of the date of the decision the subject of the review application: Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1). The present application was some two weeks out of time, but no objection being taken by the Attorney, it is appropriate to grant an extension of time within which to commence proceedings up to and including the date on which the summons was filed, namely 13 September 2018.

6. For the reasons set out below, I would dismiss the summons.

Issues on application for judicial review

7. The applicant, who is in custody, and for whom English is not his first language, understandably had some difficulty in formulating the basis of his application for judicial review in legal terminology. The clear formulation of a legal ground on which to grant review is nevertheless a matter of some importance. Although the decision under review is not a judgment, the decision was uploaded to Caselaw and is identified as Li v Attorney General for New South Wales. [5] Inaccurately, but unsurprisingly, the applicant referred to it as a judgment. The substance of the applicant’s case may be discerned from the following paragraphs in his application, which was in the form of a submission:

“9.   The judgement finding was not with his owns opinion and the remarks were entirely copy from NSW Attorney General’s submission which particularly featured to Applicant’s initial submission which made on 29 January 2018.

…

15.   …

Apparently, it is the fact, it can be certainly confirmed that Judge Harrison was never viewed and study of my second submission which submitted on 30 April 2018 because there is not any his response or relevant remark to my four grounds and those 10 significant questions I raised.

Furthermore, Applicant is in doubt of Judge Harrison’s perception to my application, I believe he was also not engaged with any of review even to my initial submission which submitted on 29 January 2018, otherwise, why the finding was identical as NSW Attorney General submission.”

5. [2018] NSWSC 674.

8. The key concern is the applicant’s appreciation that the reasons of the judge for rejecting his application were an edited version of the submissions of counsel for the Attorney, filed on 9 March 2018. It may readily be understood that where, in adversary proceedings, a judicial officer simply adopts the submissions of one party (particularly in circumstances where that is the respondent) without expressly addressing the contrary position taken by the moving party there is a very real risk that an applicant would infer that the judge had failed to give independent and impartial consideration to the case presented by the applicant.

9. However, it is less easy to formulate the correct legal basis on which a challenge to the validity of such a decision could be mounted. For the purpose of obtaining relief which would have the effect of declaring or setting aside the decision as invalid, it was necessary for the applicant to establish that the decision was affected by either jurisdictional error or an error of law appearing on the face of the record (which will include the reasons for decision).

10. Based on the submissions of both parties, both written and oral, in this Court, the potentially available grounds may be formulated as follows:

1. adoption of the Attorney’s submissions demonstrated that the judge had not in fact formed the relevant state of satisfaction to enable him to dispose of the proceedings;

2. by adopting the Attorney’s submissions of 9 March 2018 the judge failed to consider the submissions of the applicant in reply filed on 30 April 2018;

3. to the extent that the Attorney’s submissions of 9 March did not fully address the grounds of the application, adoption of those submissions failed to address all of the grounds relied on by the applicant;

4. in the alternative to the foregoing, that is, on the basis that the judge did in fact form a relevant opinion after considering all the relevant material, the reasons were inadequate in that they failed to explain why the applicant’s submissions were rejected, and

5. in the further alternative, the adoption of the Attorney’s submissions meant that justice was not “seen to be done”.

11. Before addressing these matters, it is convenient to set out the statutory framework within which the decision arose. However, it should be noted that the judge himself addressed the statutory framework and there is no suggestion that his analysis of the law involved any error.

Statutory scheme for inquiry

12. Part 7 of the Appeal and Review Act allows for review of convictions and sentences either by way of a petition to the Governor (Div 2) or by way of application to the Supreme Court (Div 3). Most applications under Pt 7 involve the latter approach, which was that adopted by the applicant. The key provisions for present purposes are the following:

78   Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79   Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)   it appears that the matter:

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

…    

and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

…

(4)   Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)   The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

13. The present matter was concerned solely with the sentencing of the applicant. The phrase “any mitigating circumstances” in relation to a sentence is awkward language, the scope of which may be unclear. In Sinkovich an issue arose as to the proper scope of an application because the judge had adopted a constrained approach to the matters to be addressed, concluding that they did not extend to alleged errors of law. [6] That view was rejected, in part on the basis that s 74(2) provided that “[i]n this Part, a reference to a review of, or an inquiry into … a … sentence includes a reference to a review of, or an inquiry into, … any aspect of the proceedings giving rise to the … sentence.” There was no suggestion in the present case that the matters which the applicant sought to raise with respect to his sentencing did not fall within the scope of such an inquiry.

    6. See Sinkovich at [9].

14. Section 79(1) refers to the steps which the Supreme Court may take “[a]fter considering an application under section 78”. However, the Court may only direct an inquiry into the sentence “if it appears” that the matters identified in s 79(2) are satisfied. Reading that language in context, it is clear that the state of satisfaction must be achieved by the Chief Justice or the judge authorised by the Chief Justice to consider the application. [7] Importantly, the power to direct an inquiry depends upon the judge considering the application being affirmatively satisfied as to the matters set out in s 79(2). The judge proceeded on that basis. It follows that the first manner in which the error was identified above, namely that the judge had not in fact formed the necessary opinion to dismiss the application, was not an available ground. The judge was required to dismiss the application unless satisfied as to the relevant criterion.

    7. Sinkovich at [26].

15. The relevant criterion provides a low hurdle for the power to direct an inquiry, namely satisfaction, relevantly for an inquiry into a sentence, that “there is a doubt or question as to … any mitigating circumstances in the case”.

16. It is clear that consideration of an application for an inquiry does not involve an inter partes proceeding. While s 79(4) states that the proceedings under s 79 “are not judicial proceedings”, it is not entirely clear why the consideration of an application is described as a proceeding at all. Clearly it is not intended to involve a hearing, nor does it involve “parties” in the ordinary sense in which that word is used in relation to judicial or quasi-judicial matters. Absent s 79(4), it might have been unclear whether the judge should accept submissions from the prosecuting authority; however, the judge is expressly empowered to consider “written submissions made by the Crown”, as occurred in the present case.

17. The dismissal of the application did not resolve any substantive legal entitlement of the applicant; it remained (and remains) open to the applicant to file a further application at any time. That fact casts doubt upon the availability in judicial review proceedings of an order setting aside the refusal of the application.

18. The practical reason for pursuing the proceeding appeared to be that if the decision were left on foot, and a repeat application made, it might result in a summary dismissal on the basis that it had “previously been dealt with under this Part”, within the terms of s 79(3)(a)(ii). However, no relevant reviewable error having been established, it is unnecessary to deal with the availability of relief, and the appropriate form of relief, in the event that reviewable errors were established.

Merit of application

(a)   failure to form relevant opinion

19. There are two answers to the proposition that the judge, in making a decision on the application, failed to form the necessary opinion as to whether there was a doubt or question as to any mitigating circumstances in relation to the sentence. First, the judge correctly set out the statutory criterion, absent which the power to order an inquiry was not engaged. The judge also correctly noted that it was a discretionary power. [8] He further stated:

“[15]   The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. It is the satisfaction of the Court that it ‘appears’ that the condition is satisfied which is critical. The Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry.”

8. Decision at [10].

20. The judge identified the issues raised by the applicant in the following terms:

“[22]   Mr Li appears to raise three main areas of complaint:

(a)   reliance by the sentencing judge on an agreed statement of facts;

(b)   findings made by the sentencing judge based on those agreed facts as to Mr Li’s role in the criminal enterprise; and

(c)   issues of parity arising out of the alleged mis-characterisation of Mr Li’s role in the criminal enterprise by the sentencing judge, when compared to his co-offender.”

21. He then dealt with each of the issues in turn. With respect to the first matter, he concluded that Mr Li appeared to have conceded that he had accepted, and agreed with, the content of the statement of agreed facts. [9] In then dealing with the second matter (concerning the findings of the sentencing judge) he made express findings in two passages formulated in terms of the statutory question. The latter passage read as follows:

“[39]   Taking all of the above into account, Mr Li’s submissions relating to particular findings made and inferences drawn by the sentencing judge do not demonstrate the appearance of a doubt or question as to any mitigating circumstances in the case.”

9. Decision at [28].

22. Finally, the judge dealt with the issue of parity with respect to the sentence imposed on the co-offender, concluding:

“[49]   It does not in all of these circumstances appear to me that Mr Li has identified the appearance of a doubt or question as to mitigating circumstances in the case arising out of a comparison with the sentence imposed on Mr Koh.”

His final conclusion was in the following terms:

“[50]   Mr Li has not identified the appearance of any error by the sentencing judge in the sentence imposed upon him, or any other basis on which the appearance of a question or doubt as to mitigating circumstances arises in respect of his case. Accordingly, the power of the Court to direct an inquiry or refer ... the case to the Court of Criminal Appeal is not enlivened.”

23. Putting to one side the challenge to the basis on which the opinion was formed, there is no reason to conclude that the judge did not in fact form the views expressed in these paragraphs. Accordingly, the first way in which the applicant sought to put his case should be rejected as unfounded.

24. This ground must be rejected for another reason. Broadly speaking, the powers of this Court with respect to judicial review are only engaged where a decision-maker has erred in law in reaching a particular conclusion. However, assuming that the judge applied his mind to the correct question, and in doing so considered all relevant material and did not take into account irrelevant material, his failure to achieve an affirmative satisfaction as to the existence of factual error on the part of the sentencing judge will not reveal error of law. [10]

    10. Cf Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157 (Glass JA, Samuels JA agreeing).

(b)   failure to consider submissions in reply

25. The factual basis for the complaint that the applicant’s submissions in reply were not considered depended upon the proposition that the judge adopted, almost verbatim, submissions on behalf of the Attorney filed on 9 March 2018.

26. The factual premise may be accepted, in the sense that the judge did adopt the Attorney’s submissions. That was demonstrated by a document indicating which portions of the judgment were taken unamended from the Attorney’s submissions, the portions of the submissions which were excluded and the amendments which were made to other parts of the submissions.

27. How the judge came to adopt that course is not known. However, it is clear that at least stylistic amendments were made to every paragraph of the submissions, some paragraphs were omitted and other brief passages were added.

28. The present question is not whether this course of decision-making was desirable, nor whether it demonstrated a failure to give genuine and independent consideration to the issues raised by the applicant in his application and submissions in support of his application. Rather, the limited question for the purposes of this ground is whether the judge failed to consider the submissions filed in reply after the date of the Attorney’s submissions. To establish that factual premise, the applicant needed to address two matters. The first was the inclusion of the following passage in the reasons of the judge:

“[28]   In any event, Mr Li appears to have conceded this point in his response to the Attorney General’s submissions. He said, ‘I stress that the agreed fact for sentence is not intend to dispute. I accepted and agreed the content’.”

The quotation in [28] came from par 10 of the applicant’s reply of 30 April. It provides clear evidence for the inference that the trial judge had that document before him at the time that he prepared his reasons for decision and, it must be inferred, had read the applicant’s reply.

29. The second matter to be addressed by the applicant is the need to identify aspects of the reply (beyond the reliance on the concession in par 10 set out above) which demanded explicit reference in the reasons for decision. The reply of 30 April was in two parts. The first constituted a response to the Attorney’s submissions; the second part was described as a “Statement Part 2 to Judicial Officer”. The first part introduced no new material: it addressed the paragraphs in the Attorney’s submissions either by referring back to the application or by referring to further submissions in the Part 2 statement. Accordingly, it is sufficient to address the Part 2 statement. The Part 2 statement covered some 20 pages and was carefully structured by way of an introduction, four substantive topics and a conclusion. The four substantive topics were headed:

1. procedural fairness;

2. legal argument;

3. proof beyond reasonable doubt, and

4. error in applying the parity principle.

30. On 28 May 2018, being the day that Harrison J handed down his decision, the Attorney filed a response to the applicant’s reply. It was brief (four pages) and it is not clear whether the judge received it before handing down his decision. If he did not that is not a matter about which the applicant can complain. In fact the Attorney’s response of 28 May focused almost entirely upon the question of procedural unfairness, providing reasons for rejecting the complaint.

31. Under the heading “Procedural fairness” the applicant raised a question as to the correctness of the inferences drawn by the sentencing judge as to his role in the handling of the drugs which had been found in a warehouse in Castle Hill. It was in this passage that the applicant acknowledged that he did not dispute the content of the statement of agreed facts relied upon at his sentencing in this State. Nevertheless, he asserted that his “defence” had been compromised because of his inadequate communication in English.

32. That was the same issue which had been raised in his original application and was dealt with by Harrison J at [23]-[28] of his reasons for decision. It is not necessary to set those paragraphs out: it suffices to note that no new matter was raised with respect to that issue in the submissions of 30 April 2018.

33. The second substantive matter raised in the applicant’s 30 April submission, under the heading “Legal argument”, involved a comparison of statements made by the County Court judge in Victoria (where the applicant was sentenced for a related offence) and the inferences drawn by the sentencing judge in New South Wales. The challenge was directed to the finding of the sentencing judge that the applicant’s “role and level of participation was greater than that of Mr Koh, although not substantially so.”[11] The sentencing judge had continued:[12]

“Mindful of the sentence imposed upon Mr Koh and having weighed the similarities and differences in the respective cases I have determined that the appropriate starting point for the sentence to be imposed on Mr Li is the same as that adopted for Mr Koh.”

11. See sentencing judgment, quoted in Li v R [2014] NSWCCA 341 at [17].

12. Ibid at [18].

34. There was a connection between the Victorian and the New South Wales proceedings. The applicant was charged in Victoria with the offence of trafficking in a commercial quantity of MDP2P, being some 385kg of liquid MDP2P discovered in a van driven by his co-offender, Mr Koh. The Victorian activity appeared to be part of the same drug supply operation, involving part of the large quantity of the drug delivered to a factory unit at Castle Hill. The Victorian proceedings, which commenced in July 2008, involved an anticipated trial in the course of which the prosecution sought to call evidence of the steps taken in New South Wales prior to the arrest of the applicant and Mr Koh in Geelong, Victoria. There was an obvious potential for prejudice in that this evidence would reveal to the jury the very large quantity of the drug discovered in Sydney, but not the subject of charges in Victoria. In addressing both the second issue identified in the 30 April submission and the third issue (under the heading “Proof beyond reasonable doubt”) the applicant extracted passages from the hearing on the voir dire in Victoria. None of this material, however, had any bearing on the inferences available to the sentencing judge in New South Wales, based on the statement of agreed facts.

35. These submissions fed into the fourth issue (relating to the question of parity) which the applicant himself described in his 30 April submission as “the critical point.” [13] The substance of the complaint appears to have been twofold: first, the sentencing judge in New South Wales relied upon material which had been excluded from the Victorian trial proceeding, and, secondly, the prosecutor in Victoria had accepted that Mr Koh and the applicant had the same level of responsibility for the offending.

    13.    Submission, par 29.

36. Unsurprisingly, given it was the critical focus of the applicant’s complaints about his sentencing, these issues had been squarely raised in his original application. They were addressed in the judge’s reasons for decision at [40]-[44]. The applicant’s submissions of 29 January 2018 contained much of the same material, together with a more extensive discussion, covering some 60 pages. There was, in substance, nothing new in the submission of 30 April, other, perhaps, than the express concession which was quoted by the judge in his reasons.

37. There is, accordingly, no basis for considering that the judge failed to consider the applicant’s submissions of 30 April. If he had failed to consider them, it would have been immaterial, because they contained nothing new. Accordingly, the second way in which the complaint was formulated must be rejected.

(c)   failure to address basis of application

38. The third way in which the argument appeared to be raised on the judicial review hearing was that, by simply adopting as his reasons for decision the submissions of the Attorney, the judge failed to address significant aspects of the applicant’s application, because the Attorney had not addressed those matters.

39. It may be accepted that, if the factual premise were made good, the conclusion would follow and there would have been a constructive failure on the part of the judge to address the application before him. However, the difficulty lies in the factual premise; it was far from clear from the submissions for the applicant in this Court that there were significant issues raised in his application for an inquiry which were not addressed by the Attorney and thus not addressed by the judge. The written submissions in this Court did not identify any specific issue which had been raised in the 29 January submission by the applicant and not addressed by the Attorney’s submission of 9 March. The oral submissions did not expand on this point. Accordingly, that aspect of this ground must be rejected.

40. There remains a separate point, which may well have been the intended gravamen of this ground, namely that by simply adopting the Attorney’s responses the judge did not engage with the complaints as formulated by the applicant and therefore failed to address the application. In considering this formulation, it is appropriate to address the submissions for the Attorney in this Court which acknowledged that “[t]he extent of the unattributed adoption of the Attorney General’s written submissions demonstrates a constructive failure to exercise jurisdiction.” [14]

    14.    Submissions, 28 November 2018, par 3(b).

41. In support of that conclusion, the Attorney accepted that the reasons at [1]-[20] set out the legal and factual background to the application and were uncontroversial. Under the heading “Submissions” the judge then adopted, with stylistic changes, the following statement from the Attorney’s 9 March submissions:

“[21]   Mr Li does not clearly articulate the apparent doubt or question as to mitigating circumstances in this case, nor does he identify any specific legal error. This may be the result of the fact that he is legally unrepresented, and English is not his first language. His lack of clarity therefore necessitates a degree of interpretation to determine the bases of the application.”

The judge then set out the three areas of complaint identified by the Attorney and quoted at [20] above. As already explained, the “three main areas of complaint” identified by the Attorney and addressed in his submissions closely correlated with the original submissions of the applicant, as reiterated in the Part 2 statement contained in the applicant’s 30 April submission.

42. As further noted, it is not apparent that any substantive argument was omitted by this paraphrasing of the applicant’s case. Indeed, the documents provided by the applicant for the purpose of his application for an inquiry, while allowing the reader to infer the underlying thoughts, were obscure both in their choice of language and in the grammatical structure of the sentences. It would not have advanced the clarity of the reasons of the judge in determining the application to have quoted verbatim from the applicant’s own documents, nor would it have assisted had the judge sought to reformulate the issues in different terms to those adopted by the Attorney.

43. It is not the role of a court exercising judicial review to reconsider the merits of the decision under review. Nevertheless, if the applicant for judicial review is to succeed in demonstrating that the original decision-maker has either failed to address the applicant’s arguments or has failed to bring an independent and impartial mind to bear in rejecting the arguments, it may be necessary for the applicant to demonstrate at least one material factor which has been squarely raised before the decision-maker and, at least arguably, remains subject to the reasonable possibility of acceptance, despite the contrary arguments adopted by the decision-maker. However, applying that approach, it is not possible to discern a legitimate basis for an inquiry into the applicant’s sentence raised by the application and the submissions in support thereof which was not identified by the Attorney in his submissions. On one view, the Attorney’s 9 March submissions articulated the grounds of the application with admirable fairness, if not creativity, in the interests of the applicant. Nevertheless, the Attorney’s responses were entirely persuasive. Nothing put by the applicant in his reply submission of 30 April 2018, or in his application to this Court, or in oral submissions on the hearing of these proceedings, demonstrated any reasonably arguable basis for doubting the correctness of the decision.

42. In his written submissions, the Attorney referred to a number of cases in which appellate courts have held that the adoption by a judge of the submissions of one party might involve an inadequate exercise of jurisdiction. Three circumstances may be identified.

43. In the first, where the reasons set out the submissions presented by both parties, and then simply express a preference for one set of submissions over the other, there will be a failure on the part of the judge to give reasons for his or her choice. So much was held in Commissioner for Railways for the State of Queensland v Peters [15] and Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd. [16]

    15. (1991) 24 NSWLR 407 at 417 (Kirby P, Priestley JA and Waddell AJA agreeing).

    16. [2002] NSWCA 238 at [66] (Heydon JA, Hodgson JA and Ipp AJA agreeing).

44. A second situation may arise where the judge adopts one party’s submissions almost in their entirety, whilst totalling ignoring the submissions of the other side. [17] In substance, the result is the same as that in the first category of cases; there is an implicit preference for one set of submissions over the other without giving reasons for the choice.

    17. Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189 at [163]-[165] (Charles, Buchanan and Chernov JJA).

45. The third category also falls within the same pattern of error, but in form the emphasis is upon the reproduction of the submissions of one party, without attribution, and again without reference to the contending submissions of the other party. [18] As noted above, the Attorney identified as the basis of error the extent of the “unattributed adoption” of one party’s submissions. However, the lack of attribution is not necessarily a critical factor; although it may indicate a failure to acknowledge what is being done, it will usually be immediately apparent to each party that one party’s submissions have been adopted.

    18. C v B (2006) 35 Fam LR 285; [2006] Fam CA 513 at [5].

46. These decisions are of limited assistance for two reasons. One is structural: there is an important difference between the scope of the obligation to give reasons imposed on judges, especially in superior courts, as compared with administrative decision-makers. Indeed, there is no general law obligation on administrative decision-makers to give reasons. [19] The second reason is substantive: the cases involved an adversary hearing in which the contesting parties had each articulated clear and rational submissions in support of their respective positions. These are not separate factors, but both apply in the present circumstances. That is, there was no adversary proceeding and no conflicting evidence and submissions. Rather, there was an application for an inquiry in the course of which the Attorney General articulated both the arguments of the applicant and the responses to those arguments. Had he not done so, the application could well have been dismissed on the basis that the applicant had articulated no satisfactory ground for doubting or questioning the sentence imposed in the District Court.

    19. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43] (French CJ, Crennan, Bell, Gageler and Keane JJ).

47. A similar issue arose with respect to the reasons of the Administrative Appeals Tribunal in LVR (WA) Pty Ltd v Administrative Appeals Tribunal. [20] The reasoning of the Full Court of the Federal Court appears from the following passage:

“[5]   Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. … Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. … The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.

[6]   That additional fact is that the extensive copying, without attribution, of the Commissioner’s written submissions filed before the hearing in the Tribunal did not extend to the only paragraphs of those submissions which considered the content of the affidavit of Mr HB Schokker sworn 21 June 2010 (the Schokker affidavit).”

20. (2012) 203 FCR 166; [2012] FCAFC 90 (North, Logan and Robertson JJ).

50. The Full Court expressed considerable concern that the issue of unattributed copying had not been explained to the primary judge (hearing the appeal from the Tribunal) nor, initially, to the Full Court. The Court also noted that it was not making “a quantitative rather than a qualitative assessment of the extent of the copying”. [21] As appeared from the opening passages in the judgment of the Full Court set out above, the case was determined on the basis that the Court was not satisfied that a significant affidavit, tendered by the applicant, had been read and taken into account by the Tribunal.

    21. LVR at [43].

51. The determinative reasoning in LVR was expressed in the following passage:

“[123]   The AAT Act does not make detailed prescription as to the practices and procedures which the Tribunal must follow in either the pre-hearing or hearing phases of the exercise of its review function. Rather, subject to any requirement flowing from the particular statute which has conferred a review jurisdiction on the Tribunal, the practices and procedures to be followed are within the discretion of the Tribunal: s 33(1)(a) of the AAT Act. Further, in light of that, it is incumbent on a court to exercise a principled restraint in respect of the judicial review of procedural decisions made by the Tribunal: Rana v Repatriation Commission (2011) 196 FCR 137 at [32]. That said, “proper consideration” in terms of s 33(1)(b) of the AAT Act is consideration which is not only procedurally fair but is indeed and can be seen to be consideration by the member constituting the Tribunal.

[124]   In this case, the starting point must be the content, rather than the fact, of the Schokker affidavit. The question is whether there was one or more matters of substance in that affidavit, relevant to the issue of compliance or non-compliance with the Relevant Directions, with which the Tribunal did not deal. Despite the submission on behalf the appellants we do not consider this falls to be considered as a matter of the weight to be given to the Schokker affidavit. The issue is whether the substance of that affidavit was considered despite the absence of reference to it.

…

[136]   In our opinion, the Tribunal did not conduct that evaluation of the material in the Schokker affidavit, whether by reference to written submissions on behalf the Commissioner or oral submissions on behalf the Commissioner or otherwise. For the reasons we have explained, the Tribunal did not address compliance with reference to the Schokker affidavit although in a paragraph copied verbatim and without attribution from the Commissioner's written reply submissions there is a reference to a submission which refers to the Schokker affidavit. Importantly, nowhere does the Tribunal refer to the detailed analysis of the Schokker affidavit by counsel for the Commissioner in oral submissions.

[137]   We find that the Tribunal did not have regard to the material in the Schokker affidavit and thus it failed to have regard to the appellants' explanation relevant both to the question of breach of the Tribunal's directions and to the exercise of the Tribunal's discretion conferred by s 42A(5)(b) of the AAT Act.”

52. Critically for present purposes, what has not been demonstrated by the applicant is that any material matters were ignored or not taken into account by the judge determining the application. There was no factual or legal dispute to be resolved; the only question was whether the judge was satisfied that a doubt or question had arisen as to the process of sentencing or the result of the sentencing carried out in the District Court. (Perhaps surprisingly, little weight was placed in the written submissions upon the fact that there had been an appeal to the Court of Criminal Appeal, conducted by experienced senior counsel, which had been dismissed.) There was no clear demonstration of evidence, favourable to the applicant, which might now be considered and which had not been available to be considered by the sentencing judge.

53. For the reasons already explained, there was no clear and credible basis for challenging the sentencing process raised in the application or the applicant’s submissions in support of his application. Accordingly, there were no particular submissions to be considered and rejected. Rather, the application was addressed by reference to issues identified by the Attorney General’s submission which, in turn, indicated the basis on which they could properly be rejected. The judge was entitled to accept that submission. In the particular circumstances of the case, it cannot be inferred that the judge did not apply an impartial and independent mind to the issues raised by the application. Accordingly, despite the concession made by the Attorney in this Court, the third basis of review must be rejected.

(d)   adequacy of reasons

54. As the foregoing discussion demonstrates, the judge gave reasons for his decision. The reasons were not, in their terms, inadequate. Had there been competing submissions between which the judge was required to choose, it might have been correct to say that the adoption of the submissions of one party, without reference to the submissions of the other and without explanation as to why the choice had been made, might reveal error. It would then be necessary to consider whether that error was an error of law or a constructive failure to exercise jurisdiction. Those questions do not arise in the present case because the premise (that there were competing submissions) was not established.

(e)   justice not seen to be done

55. There was a reference in the submissions filed for the Attorney to authority which suggested, as a test of invalidity in respect of judicial decision-making, the statement that “justice had not been seen to be done”. [22] This language, used in dealing with a test of the adequacy of reasons, was taken from the reasons of Gray J in Sun Alliance Insurance Ltd v Massoud:[23]

“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–

(a)   the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)   justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”

22. C v B (2006) 35 Fam LR 285; [2006] FamCA 513 at [6] and [107] (Bryant CJ, Kay and May JJ).

23. [1989] VR 8 at 18 (Gray J, Fullagar and Tadgell JJ agreeing).

56. It is clear that in both C v B and in Sun Alliance the phrase “justice is not seen to have been done” was intended to be a test of the adequacy of reasons. Two years before the decision in Sun Alliance, McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd [24] had identified the issue in that case as “whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.”

    24. (1987) 10 NSWLR 247 at 281.

57. It is doubtful that this aphorism was ever intended to be a test of the validity of judicial, let alone administrative, decision-making. However, because in Sun Alliance there was a suggestion that the need for justice to be seen to be done provided a separate free-standing test of invalidity, it is important to understand why that is not so and why, in the absence of any error of the kind discussed above, there can be no separate ground of review expressed in these terms.

58. As with statements about the rule of law, the aphorism encapsulates a value or underlying rationale, not an applicable legal rule or legal principle. The first limb of the statement, “justice must be done” is understood to refer to justice according to law. The second limb should also be so understood.

59. Were the aphorism to constitute a free-standing legal principle, it would have been necessary for the High Court in Public Service Board of New South Wales v Osmond [25] to have explained why the principle was generally inapplicable with respect to administrative decision-makers who, the Court held, were not subject to a legal obligation to give reasons, even for decisions which were judicially reviewable. There was no reference in Osmond to any such principle. Nor has it been invoked by this Court in explaining the scope and limits of the general law principle considered in Osmond. [26]

    25. (1986) 159 CLR 656; [1986] HCA 7.

    26. See, eg, Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [105]; Al-Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [26]; Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [61] (Gleeson JA).

60. The more recent decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [27] is inconsistent with any such approach. After noting that there is in Australia “no free-standing common law duty to give reasons for making a statutory decision”, referring to Osmond, and that the standard of written reasons required in order to fulfil a statutory duty depends upon the proper construction of the statute in question, the Court continued:

“[45]   General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility. To observe, for example, that the provision of reasons imposes intellectual discipline, engenders public confidence and contributes to a culture of justification, is to say little about the standard of reasons required of a particular decision-maker in a particular statutory context. The standard of reasons required even of courts making judicial decisions can vary markedly with the context.

[46]   Two considerations are of particular significance in determining by implication the standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act. One is the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The other is the objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion.”

27.    See fn 19 above.

61. Accepting that there is an obligation upon a judge exercising a power under Pt 7 of the Appeal and Review Act to give reasons for his or her decision and, further, that the reasons must be sufficient to allow the affected person to know if there is a basis to challenge the decision in this Court exercising its supervisory jurisdiction, it does not follow that there is any free-standing standard requiring that the reasons demonstrate that justice may be seen to be done. That language is less appropriate as a test than the more specific functional purposes referred to in Wingfoot.

62. It may be noted that the grounds of judicial review specifically incorporate the value that justice should be seen to be done in express terms by requiring that the decision-maker be unaffected by a reasonable apprehension of bias. Such an apprehension arises where an informed lay observer might think that the decision-maker might not bring an unprejudiced mind to the process of decision-making and thus may not determine a dispute on the merits. [28] No such ground was pursued in the present case; nor would it have been sustainable.

    28. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

63. Beyond these considerations there is no warrant for a court exercising the supervisory jurisdiction to create a novel approach based on the need for an “appearance of justice”. That is so for two reasons. First, if “justice” refers to the outcome, it would require the court to review the merits of the decision; not being a patently unreasonable decision, that task is not part of the supervisory jurisdiction. Secondly, if it refers to the process of decision-making, it is a departure from the general law principle which is not warranted by the statutory context. At least by implication, the conclusion reached in Wingfoot may operate in the present circumstances, namely:

“[65]   The standard required of the written statement of reasons which [the applicable statute] obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”

64. As noted in Osmond, in some circumstances a court exercising the supervisory jurisdiction may be able to infer from a failure to give reasons that the decision-maker had no valid reasons for making the decision. [29] For reasons given above, such an inference is not available in the present case.

    29. Osmond at 663-664 (Gibbs CJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [39].

65. If such an inference were available, there would nevertheless be a further step to be taken. It would be necessary to imply from the statute or the general law that the obligation to give reasons, although temporally consequent upon the existence of the decision, nevertheless constituted a precondition to the valid exercise of the decision-making power. As a general consideration, “[i]t is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision.” [30] Absent such a conclusion, the relief available in the supervisory jurisdiction for failure to give reasons is an order in the nature of mandamus. [31]

    30.    Ex parte Palme at [55] (McHugh J).

    31.    Ex parte Palme at [33], [41] (Gleeson CJ, Gummow and Heydon JJ).

66. Finally, it is appropriate to note that any proposed expansion of the supervisory jurisdiction with respect to non-judicial decision-making should take into account the fact that, although the judicial officer determining an application under Pt 7 of the Appeal and Review Act usually has available a submission by the Director of Public Prosecutions, or the Attorney General, that is not required by statute and the process does not involve parties, as in adversarial decision-making. [32] Although the decision-maker is not a member of the executive arm of government, the potential ramifications for administrative decision-making generally should be borne in mind. Administrative decision-makers, particularly those who are departmental heads or Ministers, rarely prepare written reasons. Rather, they usually adopt a reasoned recommendation from a departmental officer. In some cases that is done by countersigning the draft of an officer, in other cases by the decision-maker simply signing a document prepared for him or her by an officer, or even by counsel. The possibility that such practices are legally proscribed is novel and would require a level of consideration not provided in this case.

    32. See [14], [16] above.

64. For these reasons, any implicit suggestion that there is a free-standing right of review where it is said that justice has not been seen to be done, should be rejected. The relevant legal principles are encompassed by the phrase “justice according to law”.

Conclusion

68. In these circumstances, having constructed from the non-legal analysis provided by the applicant, potential grounds of review, those grounds have not been shown to have merit. Accordingly the application for judicial review of the decision of Harrison J under the Appeal and Review Act, Pt 7, must be dismissed.

69. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Basten JA and Brereton JA. Subject to para [71] below I agree with Basten JA’s reasons. I agree with the orders his Honour proposes. I add additional reasons for concurring in his Honour’s conclusion that Mr Li’s supplementary submission of 30 April 2018 did not raise any new material that the judge was required to address specifically.

70. Counsel for the Attorney General submitted that it should be inferred that the judge failed to bring his own mind to bear on all of the issues before him because his Honour failed to address Mr Li’s complaint of a denial of procedural fairness or natural justice raised in his submissions of 30 April. The Attorney conceded that there had been a constructive failure by the judge to exercise jurisdiction. In his opening submissions counsel for the Attorney raised three points in relation to that concession. First, it had not been lightly made, but reflected the serious nature of applications under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) and the importance of ensuring that justice was both done and seen to be done. Secondly, that the concession was very narrow in scope. It was not submitted that the reproduction of submissions, with or without attribution, was itself an error. Thirdly, the concession obviously did not bind this Court.

71. The Attorney did not submit that the application for judicial review should be refused on the ground that there was no reasonable possibility that any different decision could be reached if the application were remitted to a new decision-maker. Nor was that issue raised by the Bench in oral submissions. Mr Li was not called on to address it. For this reason I do not consider that the matters raised at [43] of Basten JA’s reasons provide a ground for refusing the application.

72. The Attorney submitted that there were five matters from which a conclusion could be drawn that there had been a constructive failure to exercise jurisdiction. The first four of those matters all related to the extent of the copying, almost verbatim and without attribution, of the submissions of the Attorney General in response to Mr Li’s initial submissions. The Attorney accepted that the judge’s reformulation of the Attorney’s submissions truly expressed the judge’s state of mind. That must be accepted. But the Attorney submitted that this raised the possibility that his Honour may have been overly reliant on the Attorney’s submissions and had failed to bring an independent mind to the application, notwithstanding that his decision reflected his honestly-held opinion.

73. Brereton JA’s reasons demonstrate that the reasons for decision of the primary judge would not meet the standard of reasons required if the judge were acting judicially to decide a controversy between parties. That was not the jurisdiction the primary judge was exercising. Rather, the primary judge was exercising the power of the Supreme Court to consider whether an inquiry should be conducted by a judicial officer into Mr Li’s sentence, or whether the whole case should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) (Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)). Section 79(4) provides that proceedings under s 79 are not judicial proceedings.

74. The decision of a judge acting under s 79 is amenable to judicial review. On judicial review under s 69 of the Supreme Court Act 1970 (NSW) the issues are whether the applicant for judicial review can establish that there was error of law on the face of the record or the judge committed jurisdictional error.

75. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, McHugh JA said (in the passage cited by Brereton JA at [107] below) that the failure to explain the basis for a crucial finding of fact involved a breach of the principle that justice must not only be done, but must be seen to be done. A failure to explain the basis of a crucial finding of fact was an error of law because “... the learned judge ‘has not properly fulfilled the function which the law calls upon a judicial person to exercise’”.

76. There was no such error in this case. In any event, it would not follow for the purposes of judicial review proceedings that such an error was an error of law on the face of the record. It is only if one goes behind the record to compare the reasons of the judge with the submissions of the Attorney-General that such an error of law can be detected (assuming that the same analysis as is applied to the determination of a judicial review proceeding can be applied to the exercise of the Supreme Court’s function under s 79(1)).

77. I accept that a judge who did not bring an independent and impartial mind to bear on an application under s 78 of the Crimes (Appeal and Review) Act 2001 would commit jurisdictional error that would render the judge’s decision liable to be declared void. But I do not accept that the relevant yardstick is whether there is an appearance that justice has been done by the bringing to bear of an active, impartial and independent judicial mind, nor that it is sufficient to establish jurisdictional error that the substantial adoption of the Attorney’s submissions contributed to the creation of an “impression” that the judge did not bring an independent and impartial mind to the determination of the application. Rather, as the Full Federal Court said in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 at [91]:

“... the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task.”

78. On the present application for judicial review the question is not whether justice has not be seen to be done, but whether the court should be satisfied that the decision-maker did not in fact bring an impartial and independent mind to the decision. That is, the question is not whether Mr Li, or a reasonable person in his position, would have a legitimate sense of grievance that his submissions had not been fully absorbed and analysed and transmuted into a personal conviction on the part of the judge, but whether it should be found as a fact that the judge did not bring his own independent and impartial mind to bear on the issues.

79. There is no reason to doubt that the views expressed by the judge, albeit in terms that reflect the Attorney General’s first submissions, did express his own views on the material presented. I agree with Basten JA’s reasons (at [19]-[24] and [52]-[53]) that it cannot be inferred from the judge’s acceptance of the Attorney’s submissions that his Honour did not form the opinions that he expressed. As no clear and credible bases for challenging the sentence were raised, it cannot be inferred that the judge, in accepting almost verbatim the Attorney’s submissions, did not apply an impartial and independent mind to the issues raised.

80. The principal question raised and argued was whether the judge failed to consider the matters raised in Mr Li’s supplementary submissions of 30 April 2018. As Basten JA observes (at [28]) it is evident from the judge’s citation (at [28] of the primary judgment) of the first sentence of paragraph 10 of Mr Li’s supplementary submission that his Honour had read the submission. His Honour made no other reference to it. If there were matters of substance in that submission that had not been raised in Mr Li’s first submission, then it could be inferred, as the Attorney submitted, that there had been a constructive failure to exercise jurisdiction.

81. Basten JA concludes (at [32], [36] and [37]) that there was in substance nothing new in the submission of 30 April 2018. I agree. I set out below my reasons for so agreeing.

82. Mr Li’s submission of 30 April 2018 was in two parts. The first part did not introduce any new matters or arguments. In response to a submission of the Attorney it referred to a paragraph of Mr Li’s initial submissions in which he said:

“At first, Applicant stress he personally had no knowledge how is the court process whilst at pre-sentence hearing because that is usually exercised and determined by the legal team.

However, Applicant had expressed overwhelmingly and deeply disappointed without receive a procedural fairness whilst in his proceeding of sentence because his attempt to defend and contest the Crown’s submissions and contention had not been arranged and disregarded under his legal team’s possibly deficiency and incompetence factors.”

83. Mr Li’s essential complaint is that the sentencing judge found that he had a higher level of criminal responsibility for the charges to which he pleaded guilty than did his co-offender. In reaching that conclusion the sentencing judge drew inferences from a statement of agreed facts presented at the sentencing hearing. Mr Li contends that although he agreed to the facts so stated, there were other facts of which he could have given evidence (but did not) that would have shown that he had a lesser criminal responsibility than his co-offender. Essentially, his complaint under the heading “Procedural Fairness” was a complaint that his legal representatives at the sentencing hearing had not adduced such evidence. Although not expressly put, it should be inferred that he would also contend that his counsel, on appeal to the Court of Criminal Appeal, had not raised this as a ground of appeal.

84. Mr Li’s supplementary submission of 30 April includes an introduction called “Introduction of Statement Part 2 to Judicial Officer”. Paragraph 9 relevantly states that:

“Basically, in my general submission has already outlined all aspects and issues in terms of doubt or question. Therefore, this statement, I just focus and highlighted what is the most critical point existing and why have this application submitted.”

85. The reference to Mr Li’s “general submissions” is a reference to the first set of submissions filed 29 January 2018. This paragraph accurately states that the matters raised in the supplementary submission of 30 April are intended to highlight what was said to be critical points made in Mr Li’s initial submissions, rather than to raise new matters. As was put by counsel for the Attorney General, the only difference was said to be one of emphasis.

86. From the section in the supplementary submission headed “Procedural Fairness” the following contentions can be distilled:

1. the Crown Prosecutor, in his contentions, and the sentencing judge in her conclusions, allowed themselves to be swayed by preconceived bias which led to the inference as to the applicant’s role in the criminal enterprise (paragraph [10]);

2. that the conclusions and inferences drawn about the applicant’s role in the criminal enterprise were “prejudicial” and irrational (paragraph [10]);

3. that the applicant did not understand the conversations that took place in court because of his poor English skills (paragraph [11]);

4. that the applicant did not understand the court process and legal ramifications of the manner in which his defence was conducted (paragraph [11]);

5. that the applicant relied on their counsel’s deficient advice (paragraph [11]).

87. These matters had been addressed in Mr Li’s initial submissions of 29 January. In paragraph 8 of those submissions, to which the Attorney General responded and whose response was adopted by the judge, Mr Li raised the contention of apprehended bias and the irrational drawing of inferences:

“Applicant describes their contention were basically injected with highly influence of preconceived bias particularly on her Honour’s analysis and judgement to contended Applicant’s role of the offence …

...

… on her Honour’s analysis and judgement to contended Applicant’s role of the offence were based on fully inference and speculation basis but Applicant must pointed that out those overstated interpretation were absolutely ironically and irrational but without justification after the facts revealed.”

88. Mr Li’s initial submissions addressed the contention that he did not understand the conversations that took place in court because of his poor English skills. He gave evidence at the sentencing hearing without an interpreter. When asked if he was comfortable in doing so he said that he was. In his initial submissions he alleged that he “... had no knowledge how is the court process because that is usually exercised and determined by the legal team”. He said in his initial submissions (at [15]) that:

“… Applicant concedes at the time, he was experiences difficulties to comprehend and understand the description of this agreed facts for sentence statement precisely and his perception and coverage among the facts was basically insufficient and incapable particularly need to have measure those technical and legal terms under his unprofessional English and in such a short time.”

89. In his initial submissions he criticised his legal representatives at the sentencing hearing and he said that he “... had no choice but had signed this statement [of agreed facts] in a very rush way under without any scrutiny or legal advice.”

90. The substance of the matters raised in submissions in reply had been advanced in the initial submissions and addressed in the Attorney’s submissions that were adopted by the judge.

91. The next topic addressed in part 2 of Mr Li’s supplementary submissions of 30 April was headed “Legal Argument”. It dealt with the hearing on the voir dire or the Basha inquiry (R v Basha (1989) 39 A Crim R 337) which took place in the Victorian County Court between 22 and 29 July 2008. This section of the supplementary submissions in substance repeats (in some areas verbatim) matters that had been raised in Mr Li’s initial submissions.

92. In Mr Li’s supplementary submissions under the heading “Proof Beyond Reasonable Doubt” he contended that the Crown’s case was largely based on inferences drawn from the statement of agreed facts and did not prove beyond a reasonable doubt the facts the sentencing judge inferred from the statement of agreed facts, and the alleged degree to which he participated in the criminal enterprise. He made the same contention in his initial submissions. In those submissions he said:

“Meanwhile, the Crown is also requested to confirm whether they can prove beyond a reasonable doubt on every allegation and contention particularly in respect Applicant’s actually did and also disprove Applicant’s defence raised after their intense scrutiny. (At page 46)

…

Given the facts and evidences released. There is no evidence to prove satisfied beyond reasonable doubt that Mr Li has knowledge of the purpose why Mr Koh register a company in Australia and why lease a factory unit at Castle Hills.

On top of that, there is also no evidence can prove satisfied beyond reasonable doubt that Mr Li has knowledge or connection with the single key used to open the warehouse padlock or other two mobile phone and those related call charge service record despite found in his possession.

(At page 49)

…

Actually, there is no evidence to prove beyond reasonable doubt that Applicant’s knowledge of selected of this factory unit at Castle Hills or Applicant recognised the large size of warehouse would be required to store substantial drug chemical before the premises leased. (At page 50)

…

As on the facts for sentence indicated the Crown concedes that it cannot prove beyond reasonable doubt that Applicant knew the precise quantity of drug chemical that would be stored at warehouse, and cannot prove beyond reasonable doubt that Applicant was the only participants to this criminal enterprise or he was himself going to supply the drug from warehouse to any person. (At page 51)”

93. Those submissions were considered by the judge and answered by reference to the answers given in the Attorney’s submissions.

94. Under the heading “Parity Principle” in his supplementary submissions of 30 April Mr Li said:

“34.    Viewed overall the relative sentence remarks, the question and argument is raised. So, the present case is, if Victorian County Court already identified the role was lower end or courier notwithstanding in the trafficking offence,

Applicant disputes, what is the reason and what the evidence basis is to contend the role of NSW offence should upgraded to slightly above mid-range under two cases are direct related particularly under identical evidences basis despite the offence were committed as different nature of objective seriousness or two offences committed at different state or the charge was based on different state law.

This circumstance was extremely ironically and inexplicable because the judgement of the role was declared in two version.

…

35.    In my view, the bottom line is if NSW court had any evidence other or more than that already elicited and examined in the Victorian County Court as to corroborate an upgraded role identification for NSW offence [then] … it is acceptable and reasonable the NSW Crown and her Honour were entitled to measure those different evidences or fresh evidence uncovered in NSW offence as an alternative assessment and determined to an appropriate role or contend a different role for [the] NSW Offence …

…

36.    However, if NSW court have not any fresh evidence or justified their role assessment in the NSW offence should be higher than in Victorian trafficking offence [then] it may cast a different complexion and a question if the assessment was based and repeatedly to use those same evidences which already ruled inadmissible by the VCCJ.”

95. The same submission was made, albeit in shorter form, at page 57 of Mr Li’s initial submissions:

“In my view, if NSW Court had any evidence other or more than that already elicited in Victorian County Court to support an upgraded role identification or contention for NSW crime. It is correct and reasonable, the NSW Crown and her Honour were entitled to measure those different evidence uncovered in NSW as an alternative assessment and determination to an appropriate role or contend a different role no matter there are two related case under fresh evidence basis emerged despite Victorian County Court has already identified and acknowledged their case earlier.”

96. The conclusion in Mr Li’s submission of 30 April was that he had a lower degree of criminal responsibility for the offence than his co-offender. This was the same submission that he made initially and was addressed by the judge.

97. Accordingly, I agree with Basten JA that, contrary to the submission of the Attorney General, it cannot be concluded that the judge did not have regard to the matters raised by Mr Li in his submissions of 30 April 2018. Those submissions raised no substantive new matter. It is clear that the judge considered them. Because they raised no new matter he did not have to address them specifically. It cannot be concluded from his Honour’s almost verbatim adoption of the Attorney’s submissions that he did not bring his own mind to bear on Mr Li’s submissions.

98. Mr Li’s supplementary submission concluded with a list of ten questions he submitted the judge should require the Attorney General to answer. The judge was not required to address those questions. They covered the areas on which submissions had been made on 29 January 2018 and had been repeated in the supplementary submissions.

99. I agree with Basten JA’s reasons (at [49]-[52]) that this case stands in contrast to the conclusion drawn by the Full Court of the Federal Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90.

78. Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30; [2013] 2 SCR 357.

131. Although the underlying issue is fundamentally the same – whether the judge has applied his or her independent mind to the evidence and the issues so as to render an independent and impartial decision – the approach adopted by the Canadian Court in Cojocaru gives much greater emphasis to a presumption of judicial integrity and impartiality, and less to the appearance of justice having been done by the bringing to bear of an active, impartial and independent judicial mind, than does the jurisprudence in this country. I would not accept that one commences from the position that there is a presumption to be displaced; the essential issue is not only whether there has been, but whether there is also seen to have been, from the perspective of a reasonable person in the position of the unsuccessful party, an independent and impartial judgment. Moreover, I am unpersuaded that absence of attribution is entirely irrelevant; its danger lies in the appearance of obscuring what is being done, which upon being discovered by the unsuccessful party is calculated to exacerbate a sense of grievance from the appearance that its opponent’s case has been adopted sub silentio, while its own was ignored.

132. Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgment founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law.

The judge’s reasons

133. The next question is whether, by that yardstick, the judge’s reasons were deficient. Although his Honour was making an administrative and not a judicial decision, in the context of a decision entrusted to the Court and its judges, the reasons he gave should be regarded as being pursuant to an obligation to do so. [79] And although the duties of judges and administrative decision-makers to give reasons have different sources, their purpose is the same. [80]

     79. Cf Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [68]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7; Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [70].

     80. Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA).

134. The extent to which the judge’s reasons incorporated the Attorney’s submissions is best appreciated from the comparative document provided with the Attorney’s submissions in this court. The Attorney’s submissions to his Honour comprised 50 paragraphs; his Honour’s reasons 51. His Honour omitted paragraphs [2] and [4] of the Attorney’s submissions (which dealt respectively with the entitlement of the Crown to make submissions, and an accompanying bundle of documents), and made stylistic or formulaic changes to virtually every paragraph (including to reframe “submissions” as “conclusions”), but as to matters of substance, his Honour’s reasons contained only four substantive additions to the Attorney’s submissions. The first was that his Honour inserted an additional paragraph at [28]:

28 In any event, Mr Li appears to have conceded this point in his response to the Attorney General’s submissions. He said, “I stress that the agreed fact for sentence is not intend to dispute. I accepted and agreed the content”.

135. It is the insertion of this paragraph that rebuts the argument that Mr Li’s second submission was overlooked. Nonetheless, the only reference to that submission was to a concession on the part of Mr Li, and the reasons do not address, in direct terms, the issues raised by Mr Li in those submissions. I accept that the second submission did not in substance raise new issues such as to require answers additional to those contained in the reasons, but the absence of any reference to its contents (other than the concession) contributes to an impression that there has been a mere adoption of the Attorney’s submissions, and not a personal engagement with those of Mr Li.

136. The second was that his Honour added the last sentence (italicised below) at [34]:

34 To the extent that Mr Li suggests that he did not receive competent legal representation at his sentencing hearing, he has not pointed to any conduct by his counsel at trial that could be characterised in any manner other than as a rational step taken, or not taken, in his best interests at trial. The relevant principles applicable to incompetence of counsel were summarised recently in Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4 at [31] by Macfarlan JA. It is accepted that Mr Li does not have to satisfy the test required for successful appellate intervention due to incompetence of counsel in order to meet the requirements of s 79(2), as all that is required is the appearance of a doubt or question. However, Mr Li has not raised any matters that rise even to the level of apparent irrationality in the way defence counsel conducted his case on sentence. I note that incompetence of counsel was not raised by Mr Li as a ground of appeal in the Court of Criminal Appeal.

137. The third was that his Honour added to the table at [46], a column headed “NSW Sentence (prior to discount for early guilty plea)”, which served only to illustrate the point that is in the fourth, being the insertion in [47] of the sentence italicized below:

47 The sentencing judge considered Mr Li’s subjective circumstances to be “more favourable overall” when compared to Mr Koh. Her Honour determined, having weighed the similarities and differences between Mr Li and Mr Koh, that the starting point for each sentence should be the same. Mr Koh received a discount of 25 percent for an early guilty plea whereas Mr Li only received a discount of 10 percent. This was reflected in the difference in aggregate sentences. Prior to the application of the discount, Mr Koh’s aggregate sentence was 22 years whereas Mr Li’s aggregate sentence was slightly lower at 21 years and 8 months. Both Mr Li and Mr Koh received a modest adjustment for special circumstances. The sentences imposed in Victoria also appear to have been affected by differences in the timing of pleas by the two offenders.

138. His Honour also added the concluding paragraph [51]:

51 In the circumstances, Mr Li’s application is dismissed.

139. As the Attorney submitted in this court, while part of what was reproduced involved uncontroversial history and principles of law, [81] significance attaches to the manner in which the reasons dealt with the nature of the applicant’s case. Mr Li was unrepresented, not legally trained, and was less than fluent in English. Unsurprisingly in those circumstances, his submissions required analysis and refinement to distill any specific “doubt or question … as to any mitigating circumstances in the case or as to any part of the evidence in the case” that he might be propounding. [82] The Attorney’s submissions undertook this exercise, in the following manner:

SUBMISSIONS

23 The application does not clearly state the apparent doubt or question as to mitigating circumstances in the case, nor identify any specific legal error. This is not intended as a criticism, as the applicant is self-represented, and English is not his first language. However, the lack of clarity necessitates a degree of interpretation to determine the bases of the application.

24 It appears as though the applicant has three main areas of complaint:

a.   reliance by the sentencing judge on an agreed statement of facts;

b.   findings made by the sentencing judge based on those agreed facts as to the applicant’s role in the criminal enterprise; and

c.   issues of parity arising out of the alleged mischaracterisation of the applicant’s role in the criminal enterprise by the sentencing judge, as compared to the co-offender.

81.    In particular, at [1], [3]-[20] of the reasons.

82. Crimes (Appeal and Review) Act 2001 (NSW) s 79(2).

140. His Honour adopted, practically verbatim, the Attorney’s formulation:

Submissions

21 Mr Li does not clearly articulate the apparent doubt or question as to mitigating circumstances in this case, nor does he identify any specific legal error. This may be the result of the fact that he is legally unrepresented, and English is not his first language. His lack of clarity therefore necessitates a degree of interpretation to determine the bases of the application.

22 Mr Li appears to raise three main areas of complaint:

(a)   reliance by the sentencing judge on an agreed statement of facts;

(b)   findings made by the sentencing judge based on those agreed facts as to Mr Li’s role in the criminal enterprise; and

(c)   issues of parity arising out of the alleged mis-characterisation of Mr Li’s role in the criminal enterprise by the sentencing judge, when compared to his co-offender.

141. The Attorney’s submissions below – mirrored by the judge’s reasons – then proceed to address the application by reference to the issues so formulated. That formulation does not, at least explicitly, refer to the issue of procedural fairness, which was several times adverted to in the applicant’s first submission, and elaborated in his second submission. The Attorney’s submissions, and thus the judge’s reasons, do not in terms refer to natural justice or procedural fairness – which were addressed by the Attorney in his reply submissions. I accept that, as a matter of substance, the words of the Attorney’s submissions in chief, as incorporated in the judge’s reasons, functionally sufficiently addressed those issues. However, the adoption of the Attorney’s characterisation of the applicant’s case, and then of the Attorney’s disposal of it, contributes to the creation of an impression that his Honour did not bring an independent and impartial mind to the determination of the application. Had the judge reformulated the issues in his own terms, it would have been clear that he had independently turned his mind to the applicant’s case.

142. To my mind, such an impression is fortified by the circumstance that, as Basten JA points out,[83] surprisingly little attention was given to the circumstance that there had been an unsuccessful appeal to the Court of Criminal Appeal. In circumstances where s 79(3)(a)(i) provides that the Supreme Court may refuse to consider or otherwise deal with an application if, inter alia, “it appears that the matter … has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence)”, independent consideration of the issues might have been expected to result in greater attention being given to that consideration.

     83. Basten JA at [52].

143. In my view, the judge’s reasons are, by the relevant yardstick, deficient. The extensive adoption of the Attorney’s submissions, not only on uncontroversial matters, but particularly on the formulation and rejection of the applicant’s case, with the only reference to the applicant’s second submission being to a concession, is such as to create an impression that the judge has not independently and impartially engaged with the applicant’s claim and submissions and given serious consideration to them. The four matters inserted – which embellish submissions made by the Attorney rather than engage with submissions advanced by the applicant – are insufficient to overcome this impression, and the stylistic changes, and substitution of conclusions for submissions, even less so. A reasonable person in the position of the unsuccessful applicant would have a legitimate sense of grievance that his submissions had not been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made were just and in accordance with law, and that the judge did not bring his own independent and impartial mind to bear on the issues. The absence of attribution contributes to this impression, because it obscures the nature of what has been done.

144. In my view, therefore, the extent of the unattributed reproduction of the Attorney’s submissions, particularly in respect of the formulation of the applicant’s case and its disposal, is such as to create an appearance, from the perspective of a reasonable person in the position of the unsuccessful applicant, that his application did not receive proper independent and impartial consideration. Before us, the Attorney conceded as much. Justice was therefore not seen to be done. And as has been explained, in this field, appearances matter, whatever the reality may be.

A constructive failure to exercise jurisdiction

145. It is next necessary to address whether that amounts to error of the kind that is cognizable under s 69 of the Supreme Court Act.

146. Several decisions of this Court have held, or accepted, that failure to give adequate reasons, when reasons are required, is an error of law, involving a miscarriage of the decision-making process and a failure properly to discharge the functions of the decision-maker.

147. In Pettitt v Dunkley, [84] Asprey JA said that failure to discharge the obligation imposed by law to give reasons was an error of law, in failing to fulfil the judicial function (emphasis added):

In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.

84. [1971] 1 NSWLR 376 at 382.

148. Moffitt JA, as he then was, with whom Manning JA agreed, also held that failure to give reasons, when reasons were required, was an error of law, being a miscarriage of the judicial process. [85] His Honour said:[86]

If it can be established that a judge failed or declined to give any reasons for his decision in circumstances where there was a judicial duty express or otherwise to do so, then, as with other errors in the judicial process, I think he has erred in law. The wrongful admission or rejection of evidence or a failure to conduct the trial in accordance with judicial processes (for example, to hear counsel's submissions or to receive admissible evidence) constitutes an error of law such as can vitiate the judgment even in cases where it does not appear whether or not the omission would have affected the result …

85. [1971] 1 NSWLR 376 at 388-90.

86. [1971] 1 NSWLR 376 at 388.

149. In Soulemezis v Dudley (Holdings) Pty Ltd,[87] McHugh JA (in the passage cited above at [107]) adopted the language of Asprey JA in Pettitt v Dunkley to hold that if a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done, then it was an error of law because the judge had not properly fulfilled the function which the law calls upon a judicial officer to exercise.

     87. (1987) 10 NSWLR 247 at 281.

150. In Mifsud v Campbell, [88] Samuels JA said (in the passage cited above at [109]) in effect, that if a judge deals with the issues in a manner calculated to promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed”, tending to deny both the fact and the appearance of justice having been done, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in an error of law which is reviewable on appeal, because it involves a failure by the judge to do what the nature of the office requires. Clarke JA expressed a reservation as to whether the error was one of law, but did not refer to the abovementioned cases. [89] Hope AJA did not find it necessary to resolve whether the error was one of law. [90]

     88. (1991) 21 NSWLR 725 at 728.

     89. (1991) 21 NSWLR 725 at 729.

     90. (1991) 21 NSWLR 725 at 729.

151. In Beale v Government Insurance Office of New South Wales,[91] Meagher JA said:

Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.

91. (1997) 48 NSWLR 430 at 444.

152. A failure to give adequate reasons, where there is an obligation to do so, is a failure to properly perform the function of the decision-maker and to conduct the proceeding in accordance with proper processes – analogous to a denial of procedural fairness, or a failure to direct attention to and only to relevant considerations – and thus a species of jurisdictional error in the broad sense. In LVR, failure by a decision-maker to bring their own mind to bear on the issues was characterised as a constructive failure to exercise jurisdiction. That approach has been followed in this Court. [92] The nexus between a miscarriage in the discharge of the decision-maker’s function and jurisdictional error was explained by Basten JA in Boele v Rinbac Pty Ltd: [93]

This approach, followed in Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[25] is, perhaps, a preferable conceptual framework than the reference in Dranichnikov to a failure to accord natural justice. The word "constructive" may not be entirely apt, but it is understood as meaning "purported", in the sense of there being the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law. Whatever language is used, such a failure will generally involve jurisdictional error, analogous to a legally erroneous refusal to exercise an available power: cf Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; 249 CLR 398 at [34] (French CJ) and [65] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It means that the process of decision-making in the Tribunal, being the very function vested in the Tribunal by statute, has miscarried.

92. Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[25]; see also Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [8].

93. Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [54].

153. It follows that the failure to give reasons which sufficiently demonstrate that the judge’s own independent and impartial mind has been brought to bear on the issues is a constructive failure to exercise jurisdiction. It is therefore unnecessary to consider whether there is an error of law apparent on the face of the record: notwithstanding that, by operation of s 69(4) of the Supreme Court Act, the record includes the reasons, this is not self-evidently so, as resort must be had to the first-instance submissions of the Attorney, in addition to the reasons, to demonstrate the error. Moreover, the declaratory jurisdiction of the Court under s 75 of the Supreme Court Act is, as distinct from the prerogative jurisdiction under s 69, not strictly limited to cases of jurisdictional error and error of law on the face of the record.

The consequences of failure to give adequate reasons

154. The requirement for reasons that demonstrate that the decision-maker has brought, and is seen to have brought, an impartial and independent mind to the issues raised by the application is not obviated or mitigated by the absence of any factual or legal dispute to be resolved, or of the demonstration of evidence which was not considered by the sentencing judge but has since become available. [94] Just as the requirements of natural justice are not relieved by the circumstance that compliance with them would have made no difference – the decision is void, not voidable, although there may be a discretion in some circumstances to decline prerogative or discretionary relief[95] – so the requirement for adequate reasons stands independently of the correctness of the decision-maker’s conclusion.

     94. Cf Basten JA at [52].

     95. Calvin v Carr [1979] 1 NSWLR 1 at 8; Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277 (Aickin J); Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Carson v Legal Services Commissioner [2000] NSWCA 308 at [45].

155. In Pettitt v Dunkley, in the passage cited above, Moffitt JA held that a failure to give any reasons where there was a duty to do so, as with other errors in the judicial process, constitutes an error of law such as can vitiate the judgment even in cases where it does not appear whether or not the omission would have affected the result. [96] In Connell v Auckland City Council, which was cited in Mifsud v Campbell, Chilwell J held that the justices’ decision was a nullity in the absence of reasons. [97] In Palmer v Clarke, Kirby P said:[98]

It is not necessary to resolve the appeal on the merits. The appellants took a preliminary point which succeeds. It is enough to say that, at the point at which appellants’ counsel was stopped from arguing the merits, I would not have been disposed to disturb the judgment in favour of the respondent on these grounds. It must, however, be disturbed for another consideration, to which I now turn.

96. [1971] 1 NSWLR 376 at 388.

97. [1977] 1 NZLR 630.

98. (1989) 19 NSWLR 158 at 163.

156. Similarly, Priestley JA said:[99]

Had the reasons eventually forwarded by Moore DCJ been given before the judgment it would have been very difficult for this Court to overturn the judgment that he arrived at both on the plaintiffs’ claim and the defendant's cross-claim. I say this having heard the argument to the contrary by Mr Rares for the appellants yesterday. I refrain from speaking more positively only because Mr Rares did not complete that argument as the Court decided the appeal must be resolved in his client's favour on the ground that has been dealt with in detail by the learned President.

99. (1989) 19 NSWLR 158 at 174.

157. The appeal was allowed, for the trial judge’s failure to give sufficient reasons.

158. In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2), [100] the Victorian Court of Appeal, with reference to those passages, said:

[171]  The courts have approached the question of the adequacy of reasons given independently of the correctness of the conclusion reached by the judge. For example, in Palmer v Clarke inadequate reasons resulted in the setting aside of a decision in circumstances where the outcome of the case itself was not necessarily incorrect. 

100. (2002) 6 VR 1; [2002] VSCA 189.

159. It is true that in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, [101] the High Court rejected arguments that a decision of the Minister to cancel a visa was not invalidated by the Minister’s failure to provide his reasons to the visa holder. However, that was in a context where the giving of the reasons to the visa holder was a step which, under the relevant statute, logically and temporally succeeded the making of a decision, and the statute expressly provided that a failure to comply with it did not of itself affect the validity of the cancellation. Moreover, it was accepted that reasons, once given, might reveal jurisdictional error. Here, they have been given, and reveal error.

     101. (2003) 216 CLR 212; [2003] HCA 56.

160. As Basten JA has pointed out,[102] the Court in LVR ultimately resolved the appeal on the alternative ground that there had been a failure to take into account a relevant consideration. It may be accepted that that ground does not arise in this case. But that is not to be conflated with whether the judge has brought, and is seen to have brought, an impartial and independent mind to the issues raised by the application. The circumstance that the applicant has not demonstrated that any matters of materiality were ignored or not taken into account by the judge determining the application, nor that there was now available evidence which had not been available to be considered by the sentencing judge, does not relieve the judge of the obligation of delivering reasons which demonstrate that the decision-maker has given serious consideration to the unsuccessful party’s submissions and contentions, and brought to bear an independent and impartial judgment. Nor is it affected by the circumstance that it cannot be said that adequate reasons would have made any difference to the result. If Mr Li’s application was hopeless, he was at least entitled to have that conclusion expressed in reasons which demonstrated that that the decision-maker had given serious consideration to his claim and submissions, and brought to bear an independent and impartial judgment, and did not leave the impression that the Attorney’s arguments had been embraced without the application of an independent point of view.

     102. Basten JA at [50].

Conclusion

161. My conclusions may be summarised as follows:

1. The extensive unattributed use made by the judge of the Attorney’s submissions is calculated to create in the mind of a reasonable person in the position of the unsuccessful applicant a justified sense of grievance that his submissions had not been fully absorbed and analysed, and that the judge had not brought his own independent and impartial mind to bear on the issues, and thus there is an appearance that justice has not been done.

2. Where reasons for decision leave the appearance that justice has not been done, there is a constructive failure to exercise jurisdiction.

3. Such an error vitiates the decision, regardless of whether it was objectively correct, or whether there were issues of fact or law raised by competing submissions which required resolution.

162. As Simpson JA observed in GAR v Attorney General of New South Wales (No 2),[103] with reference to Sinkovich v Attorney General of New South Wales [104] and Buttrose v Attorney General (NSW),[105] there are complex and unresolved questions concerning the availability of relief in the nature of certiorari and mandamus in respect of determinations of this kind; but the same issues do not arise in relation to declaratory orders under s 75 of the Supreme Court Act. Her Honour indicated (at [93]) that she would have made a declaration along similar lines to those pronounced in Sinkovich and Buttrose, in the following terms:

Declare that, in considering the applicant’s application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the primary judge failed to address whether it appeared that there was a doubt or question as to a particular part of the evidence in the applicant’s trial in October 2002 and, accordingly, fell into jurisdictional error.

103. [2017] NSWCA 314.

104. (2013) 85 NSWLR 783; [2013] NSWCA 383 at [66]-[76].

105. (2015) 324 ALR 562; [2015] NSWCA 221 at [12].

163. In my view, it suffices and is preferable simply to declare that the decision dismissing the application was void.

164. In my opinion, there should be a declaration that the decision of Harrison J dismissing the applicant’s s 78 application is void.

**********

Endnotes

Amendments

17 December 2019 - [1] Insert "period" after "non-parole".

[22] Replace "to" with ellipsis in quote [50].

[56] Replacing "been" with "be" before "done" in quote.

Decision last updated: 17 December 2019