Maher, B.J. v Attorney-General for the Commonwealth of Australia
[1985] FCA 285
•24 MAY 1985
Re: BRIAN JAMES MAHER
And: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
No. QLD G39 of 1985
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.
CATCHWORDS
Administrative Law - Judicial Review - Appointment of Counsel and Solicitors for defence of indicted person under Judiciary Act 1903 s.69(3) - meaning of "cause arrangements to be made".
Administrative Decisions (Judicial Review) Act 1977; s.5. Judiciary Act 1903; s.69.
Gollin v. Karenlee Nominees (1983) 49 ALR 135
Local Government Board v. Arlidge (1915) AC 120
Re Matthew Forrest (1912) VLR 466
R. v. Sowden (1964) 1 WLR 1454
Stiles v. Galinski (1904) 1 KB 615
HEARING
BRISBANE
#DATE 24:5:1985
ORDER
(1) the application for an order of review of the decision of the Attorney-General contained in the telex of 10 May, 1985 be dismissed;
(2) the applicant pay the respondent's costs (including reserved costs), to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
JUDGE1
This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1975 ("the Act") for an order of review of a decision by the Attorney-General of the Commonwealth. That was a decision communicated to Messrs. Hopgood and Ganim, solicitors for the applicant, Brian James Maher, regarding arrangements that were made by the Attorney-General in respect of the defence of Mr. Maher in a trial presently under way.
It is a sequel to an application for an order of review heard by Jenkinson J. on 3 May, 1985, wherein his Honour set aside a decision by the Attorney-General declining to cause arrangements to be made for the defence of Mr. Maher and directing that the matter of the application by Mr. Maher for the appointment of counsel for his defence be referred to the Attorney-General for further consideration by him according to law.
Section 69(3) of the Judiciary Act 1903 provides:
"Any person committed for trial for an offence against the laws of the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of counsel for his defence. If it be found to the satisfaction of the Justice or Judge that such person is without adequate means to provide defence for himself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney-General, who may if he thinks fit thereupon cause arrangements to be made for the defence of the accused person. Upon committal the person committed shall be supplied with a copy of this sub-section."
The history of the matter up until the time of that decision by Jenkinson J., insofar as it is relevant for present purposes, appears sufficiently from his Honour's reasons for judgment at page 2 and I adopt that recitation:
"The applicant was on 3 October 1984 committed for trial for a number of offences against section 86(1)(e) of the Crimes Act 1914. The trial of the applicant and two other persons has been ordered for 7 May 1985 in the Supreme Court of Queensland. By letter dated 9 January 1985 from the applicant's solicitors, the respondent was asked for his 'intervention in ensuring Mr. Maher is properly represented at the trial.' In that letter, it was alleged that the applicant believed he had assets 'under his disposition or control' which were sufficient to provide for his defence, but that those assets were 'frozen'. Receipt of the letter was acknowledged on the respondent's behalf by letter dated 25 January 1985. On 28 February 1985 an order for sequestration of the applicant's estate was made in exercise of bankruptcy jurisdiction. The respondent was informed of that order. On 12 March 1985, the respondent decided not to approve the provision of assistance to the applicant, but expressed his willingness to reconsider the matter if a judicial certification under section 69(3) were made to him. Certification in the terms of the sub-section was made by Carter J. of the Supreme Court of Queensland on 13 March 1985. On 11 April 1985, the decision in relation to which review is now sought was communicated by a telex message to the applicant's solicitors from an officer of the Attorney-General's Department in these terms:
'The Attorney-General has asked me to reply to your recent telexes and correspondence referring to the certification by Mr Justice Carter under s.69(3) of the Judiciary Act regarding your client, Mr. B.J. Maher in relation to his forthcoming trial in the Supreme Court of Queensland commencing on 7 May 1985. You asked that the Attorney-General review his previous refusal to approve legal aid for Mr. Maher's legal representation at his trial in the light of Mr. Justice Carter's certification under s.69(3).
2.The Attorney-General has reconsidered the matter and has decided not to approve financial assistance to Mr. Maher under s.69(3) for his costs in his forthcoming trial, on the ground that he is not satisfied that Mr. Maher cannot arrange for payment of his costs from another source and, therefore, that it is not reasonable in all the circumstances to approve financial assistance for Mr. Maher.'"
The ground stated for the refusal of the application was that the Attorney-General was "not satisfied that Mr. Maher cannot arrange for payment of his costs from another source".
In that application, Jenkinson J. held that the word "means" in the section -
"comprehends not only the capacity to secure the provision of the necessary money by the exploitation of the accused's own property and of his own legal rights, but also the capacity to secure the provision of the necessary money, on terms which the justice or judge considers it not unreasonable that the accused accept, by asking, or by accepting an offer made by, a person or persons able and willing to provide the money if the accused consents to that provision being made."
It is important that his Honour's judgment not be misunderstood. In particular, it was not a direction that legal aid be granted. That interpretation not only does a disservice to his Honour's careful judgment, but misconceives the nature of the review granted to this Court by the provisions of the Act.
His Honour's judgment was simply that the contrary of that which had been certified by a Justice or Judge was not a permissible consideration in the exercise of the discretion conferred by s.69(3) of the Judiciary Act 1903.
Subsequent to his Honour's decision, Mr. Ganim, of the firm of Messrs. Hopgood and Ganim, tirelessly bombarded the Attorney-General with imprecations that adequate legal defence be provided to Mr. Maher. It is unnecessary to set out with any particularity the nature of those dealings. However, on Friday, 10 May, 1985, the Attorney-General notified Mr. Ganim of the arrangements which he proposed in respect of the defence of Mr. Maher, pursuant to the order of Jenkinson J.
On that date, Mr. Chapman of the financial assistance branch of the Attorney-General's Department, telexed Mr. Ganim as follows:
"ATTORNEY-GENERAL HAS AUTHORIZED THE FOLLOWING ARRANGEMENTS IN RESPECT OF THE DEFENCE OF BRIAN JAMES MAHER. THE ARRANGEMENTS HAVE BEEN DRAWN UP IN ACCORDANCE WITH THE APPROPRIATE LEGAL AID FEE SCALES APPLICABLE IN QUEENSLAND FOR A LENGTHY AND COMPLEX TRIAL.
(A) THE ARRANGEMENTS WILL BE FOR THE PROVISION OF ONE JUNIOR COUNSEL AND ONE INSTRUCTING SOLICITOR:
(B) THE FEE SCALE FOR COUNSEL WILL BE DLRS 5,000 FOR PREPARATION AND A DAILY FEE OF DLRS 400 FOR EACH DAY IN COURT, INCLUSIVE OF ALL CONFERENCES:
(C) THE FEE SCALE FOR INSTRUCTING SOLICITOR WILL BE DLRS 2,500 FOR PREPARATION AND A DAILY FEE OF DLRS 250 FOR EACH DAY IN COURT, INCLUSIVE OF ALL CONFERENCES:
(D) WOULD YOU PLEASE CONFIRM THAT YOU ARE PREPARED TO ACT AS SOLICITOR AND TO CHOOSE COUNSEL?
(E) ESSENTIAL DISBURSEMENTS, INCLUDING WITNESSES' EXPENSES, WILL BE PAID AT COST. WRITTEN APPROVAL MUST BE SOUGHT IN ADVANCE FOR ALL MAJOR DISBURSEMENTS, INCLUDING ALL TRAVEL. ALL DISBURSEMENTS MUST BE VERIFIED BY ORIGINAL RECEIPTS, VOUCHERS OR OTHER DOCUMENTARY EVIDENCE. DISBURSEMENTS NOT VERIFIED BY ORIGINAL DOCUMENTATION MAY NOT BE RECOUPED:
(F) THE ARRANGEMENTS MAY BE REVIEWED AT ANY TIME AND THE SOLICITOR AND COUNSEL MUST UNDERTAKE IN WRITING TO INFORM THE FINANCIAL ASSISTANCE BRANCH OF THE ATTORNEY-GENERAL'S DEPARTMENT, CANBERRA, IF THEIR FEES ARE SUPPLEMENTED FROM ANY SOURCE AND TO PROVIDE FULL DETAILS OF THE SUPPLEMENTATION: NO PAYMENTS WILL BE MADE TO SOLICITOR OR COUNSEL PRIOR TO THE GIVING OF SUCH WRITTEN UNDERTAKING:
(G) A SCHEDULE OF COURT APPEARANCES MUST BE SUBMITTED SHOWING DATES AND TIMES CLAIMED:
(H) THE FINANCIAL ASSISTANCE BRANCH OF THE ATTORNEY-GENERAL'S DEPARTMENT MUST BE KEPT FULLY INFORMED OF THE STATE OF THE PROCEEDINGS AND OF ANY SIGNIFICANT DEVELOPMENTS AND PROVIDED WITH COPIES OF ALL RELEVANT DOCUMENTS:"
That is the decision which is the subject of this application of review. I will return to it when I deal with the submissions made on behalf of Mr. Maher.
The evidence before me detailed not only a lot of the history of the matter, but also the steps taken subsequent to the sending of that telex and the nature of legal aid provided in both civil and criminal matters in Queensland. Some of that evidence is material to an appreciation of the attacks made on the legal propriety of that decision of the Attorney-General of 10 May, 1985.
The material, amongst other things, shows that Mr. Ganim communicated the terms of that telex to some 20 firms selected at random. Most of those firms replied to his communication. However, none indicated that it would be prepared to represent Mr. Maher on the terms indicated in the telex.
Further, an affidavit was filed on behalf of Mr.Maher by Bernard Barry Smith, the Director of the Legal Aid Office (Queensland); a letter sent by him to Messrs. Hopgood and Ganim of 15 May, 1985, was exhibited to that affidavit. In that letter, he recited that aid was granted by his office in summary trials in the magistrates court and in some committal proceedings. So far as the fees in such matters were concerned, he stated that for a one-day trial, including preparation, for fees for counsel and solicitor instructing counsel, the Office pays $680, which approximates the daily fee set out in the telex of 10 May, 1985.
He also indicated that, where the matter is deemed to be complex, the Office allows an additional $50 per hour in preparation and, if counsel has seniority of at least four years, an additional fee of $100 is also paid. Significantly, in that letter he said:
"As you are aware, there is no statutory scale of fees applicable in criminal law matters although I understand that many practitioners utilise the provisions of the Supreme Court Scale in determining the fees that should be paid."
He also indicated in the letter:
"As I am not aware of all the details involved in the Maher trial, I am unable to make a comparison with other complex matters funded by this office. I would however, point out that where a civil matter is deemed to be complex and Queen's Counsel has been approved, I have negotiated fees up to a maximum of $1,500.00 fee on brief although the published fees in the Commission's Guidelines provide for a fee of $1,080.00. A Junior of course, is paid two-thirds of that negotiated fee."
In cross-examination before me, Mr. Smith supplemented the figures of his letter by indicating that in civil proceedings in the Supreme Court, the ordinary fee is $1080 for a senior counsel, including preparation and excluding conferences, with a refresher fee of $720. For junior counsel, the ordinary fee is $600, with a $400 refresher fee. The Legal Aid Office does, from time to time, act in long civil litigation and, on occasions, approves of a reading fee at an hourly rate.
James Christian Carey, the President of the Queensland Law Society, also swore on affidavit and was cross-examined upon it. On 16 May, 1985, in his capacity as President of the Queensland Law Society, he forwarded a telex to the Federal Attorney-General. In part, it said:
"I refer to the trial of this matter in the Supreme Court of Queensland, the commencement of which has been delayed by the inability of the accused Maher to find legal representation disposed to undertake the defence on the terms of the special grant of aid made by you.
The Council of this Society has been gravely concerned by press reports that the legal profession in Queensland is not prepared to honour its commitment to legal aid in the criminal jurisdiction."
Its purport was to reject the correctness of that comment. The telex continued:
"On such enquiries as have been made, this Society is reasonably satisfied that complex issues may be raised in the trial. The Council is aware that the committal proceedings extended for eleven weeks and that there is a potential for sixty to seventy witnesses to be called for the prosecution upon the trial. It is possible that material introduced in evidence in the committal without objection or without serious objection may be the subject of sustained argument upon trial.
Without regard to any other complexities that may arise, the sheer volume of evidence and the number of witnesses will create its own complexity.
The special problems of this trial are adequately evidenced by the retainer by the Crown of the leader of the Queensland Bar, together with another Queen's Counsel and a junior from the independent Bar, as well as two barristers from the staff of the office of the Director of Public Prosecutions and necessary solicitors and accountants as support staff. The Society also understands that a computer has been placed at the disposal of this substantial prosecution team.
The Council has been provided with a copy of the telex of 10th May setting out conditions of the grant of aid. I would point out that the statement that the arrangements proposed in that telex are in accordance with the scale for complex matters in Queensland is incorrect. The base scale in Queensland exceeds the amount offered in the telex and there are a number of discretions that are exercised in this State to have proper regard for complex matters."
He sought, on behalf of the Council of the Queensland Law Society, that the Attorney-General substantially review the terms and quantum of his grant of aid, at least to the extent that it affords the accused a realistic prospect of obtaining representation of both instructing solicitor and barrister/s adequate to the task.
In addition, the Public Defender for the State of Queensland pursuant to the Public Defence Act 1974, Anthony Joseph Healy, swore two affidavits and gave evidence before me. He stated the rates of remuneration which he is authorised to pay to counsel and solicitors briefed or instructed by him in relation to a criminal trial in the Supreme Court of Queensland. These rates were fee on brief for a barrister from $396 to $792, with a refresher fee of $251, and for a solicitor, the initial fee, including the first day of trial, from $198 to $396, and for the second and subsequent days of trial $145.
He indicated that where a request is made for higher remuneration, it is forwarded to the Department of Justice for consideration.
In the second of his affidavits, he indicated that he has been in the Public Defender's office for approximately ten years and has been Public Defender since 18 August, 1983. He dealt with five lengthy matters with which his office has been concerned, giving details of those matters, including details of the amounts which were paid to counsel and solicitors, both by way of prepartion fee and by rates for appearance.
The effect of that material is best set out in paragraphs 13 and 14 of the longer of his two affidavits:
"...to the best of my knowledge and belief, the largest fee for the second and subsequent days of a trial ever paid by the Public Defender's Office to a solicitor in any Court, is $180 and the largest refresher fee ever paid by the Public Defender's Office to a barrister in any Court is $330.
14. I am confident that the Public Defender's Office has never paid a fee for counsel of $5,000 for preparation, nor $400 for each day in Court; and that the Public Defender's Office has never paid a fee for instructing solicitors as high as $2,500 for preparation, nor a daily fee of $250 for each day in Court."
He expressed the view that there would be both barristers and solicitors competent to undertake a lengthy and complex criminal trial in the Supreme Court on the terms set out in the telex of 10 May, 1985. However, he fairly conceded that he was not aware of the details of the matters involved in the trial in which Mr. Maher is currently engaged.
Finally, insofar as it is necessary to refer to the evidence, Peter Anthony Benson, a Principal Legal Officer in the Financial Assistance Branch of the Community Affairs Division of the Attorney-General's Department, gave evidence that he was involved in the preparation of the telex. He indicated that, prior to the preparation of the draft of that telex, he had made a number of inquiries. He had spoken both with Mr. Healy, the Public Defender, and with the Director of the Legal Aid Commission in Queensland. However, the detailed inquiries to which he has deposed centre on a communication he had with John Hinks, the Deputy Under-Secretary of the Department of Justice.
He made inquiries of Mr. Hinks as to what, considering the nature of the Maher trial, would be an appropriate level of aid to Mr. Maher had such aid been granted by the Department of Justice in Queensland.
These inquiries indicated that something in the order of $5000 on brief would be appropriate for junior counsel, with a refresher of $400 per day, plus a fee of the order of $2000 for a solicitor, with a preparation fee of $250 per day and with no provision for conferences unless they were exceptional.
That material, while not being admitted into evidence for the purpose of proving that those would be appropriate fees, indicates at least the results of the inquiries made prior to the issuing of the telex, and further that the quantum of aid mentioned in those enquiries does not lose by comparison with the quantum of such aid deposed to by Mr. Healy.
It is fair to say that a substantial cause of grievance much stressed before me was the perceived unfairness in legal aid in the provision of junior counsel and a solicitor in a trial which, on any view of the matter, is complex, and, in particular, where the prosecution team consists of two senior counsel of unqualified and undoubted ability, as well as junior counsel and quite considerable support staff. I will come to that consideration shortly.
There is one further and quite important matter I should deal with before proceeding to the other submissions of counsel for Mr. Maher. This is the submission that the obligations imposed on the Attorney-General by the provisions of s.69(3) of the Judiciary Act 1903 are not simply for the provision of funds by which the services of counsel and solicitors may be obtained, but extend to the appointment of such solicitors and counsel.
In that regard, the solicitors for Mr. Maher, in a letter of 23 May, 1985, indicated, in response to a request for particulars of what proper arrangements were said to be required, that it was their contention on behalf of Mr. Maher that proper arrangements meant arrangements which were proper for his defence and "would involve the engagement of counsel and solicitor who have the experience and competence to conduct the defence."
On 24 May, 1985, that is to say this morning, the Australian Government Solicitor wrote to Messrs. Hopgood and Ganim and, amongst other things, said:-
"I note your assertion that the Attorney-General is obliged to make proper arrangements and this involves (inter alia) the engagement of a solicitor.
It is implicit in this assertion that the Attorney-General has authority to engage a solicitor to represent Mr. Maher, although I note that Mr. Maher has never expressly authorised such an engagement.
In the light of your assertion I have sought further instructions from my client.
I am instructed to inform you that the Attorney-General has today engaged Mr. J.A. Mackay as solicitor for Mr. Maher with respect to the proceedings pending against him in the criminal jurisdiction of the Supreme Court of Queensland. Mr. Mackay has been authorised to engage counsel on Mr. Maher's behalf."
Joseph Alexander Mackay filed an affidavit and was cross-examined upon it before me. He indicated that he had been contacted by officers - first of the Attorney-General's Office in Brisbane, and then later by a Mr. Creswell from the Attorney-General's Department in Canberra, and had been engaged on 23 May, 1985 by the Attorney-General to act as solicitor for Mr. Maher in respect of his trial, currently under way. He indicated that he personally had neither seen any of the material nor had any conversations with either Mr. Maher or Mr. Ganim. However, he stated that he was prepared to accept the retainer as Mr. Maher's solicitor on the terms set out in the Attorney-General's telex and had engaged counsel for the purpose of representing Mr. Maher in his trial.
He stated that he personally did not intend to act as solicitor, but had engaged a solicitor, an employee of his firm, of some 17 years' experience, to discharge the obligations of the retainer.
Those circumstances, which have happened very recently, were the subject of submissions as to whether I ought, in the exercise of my discretion, to concern myself with reviewing the decision, subject to the order of review, it being said that, in a sense, the ground of complaint by Mr. Maher has been overtaken by subsequent events.
I turn now to a consideration of the other submissions made on behalf of Mr. Maher by Mr. Gore of counsel. The first of these concerned the ground that the decision the subject of the order of review was not authorised by the Judiciary Act 1903 in that, it was submitted:
"Section 69(3) of the Judiciary Act 1903 required the respondent to cause arrangements to be made for the defence of the applicant, whereas the decision made by the respondent did not cause such arrangements to be made but rather amounted to an invitation to others to cause such arrangements to be made."
Shortly put, the contention was that the Attorney-General, in the discharge of his obligations under s.69(3), was required to appoint counsel and solicitor. The provision merely of funds so that that might be done did not amount to the discharge of his obligations pursuant to the enactment.
That ground is based on the provisions of s.5(1)(d) and (f) of the Act, which provide:-
" (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:-
...
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
...
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
..."
The submission was that, properly construed, s.69(3) obliged the Attorney-General to retain persons to act as counsel on Mr.Maher's behalf, and to see that the obligation to pay those persons was met. Moreover, it was not just any counsel or solicitor that would have to be appointed. There would have to be a bona fide and genuine appointment of persons suitably qualified by way of experience and expertise to discharge the obligations of providing a defence.
In development of that submission, Mr. Gore referred to Gollin v. Karenlee Nominees (1983) 49 ALR 135 at 144, where the Full Court of the High Court of Australia, consisting of Mason, Murphy, Brennan, Deane and Dawson JJ. said:-
"As Edmund Davies L.J. pointed out in Tradax Export SA v. Volkswagenwerk A.G. (1970) 1 QB 537 at 546, the meaning of the words "appoint" and "appointed" varies according to the context in which they are used. In some cases, the appointment of a person to fill a particular role or to perform a particular task will require nothing more than communication between appointor and prospective appointee. That is not ordinarily so in a case where one party to a contract is entitled or required to appoint a third person to do something with consequences that are contractually binding upon the other party or parties. In such a case, and in the absence of contrary provision in the contract, the appointment will ordinarily be effective only when the prospective appointee has been clothed with the requisite authority by being identified as the person appointed for the purposes of the contract by communication of his identity by the party entitled or required to appoint to the other party or parties."
Later, at that same page, the High Court referred to the observations in the Tradax case of Lord Denning M.R. and Salmon, L.J., stating:-
"...three things were necessary to constitute an effective appointment of an arbitrator under a clause in a charter-party which stated that all disputes were to be referred to the arbitration of two arbitrators, one appointed by each party. In the words of Lord Denning MR: 'First, it is necessary to tell the other side. That is plain from Tew v. Harris. ((1847) 11 QB 7). Second, it is necessary to tell the appointee himself. That is obvious because he often has to start acting at once. Third, it is necessary that he should be willing to act and have intimated his willingness to accept the appointment.'"
It was submitted that none of those three requirements was satisfied in the present decision under dispute. Reference was made to the observations of Cussen J. in Re Matthew Forrest (1912) VLR 466. His Honour was there concerned with the circumstances which should be considered on an application under s.69(3) of the Judiciary Act 1903 for a certificate if an accused person is without adequate means to provide for his defence.
At page 468 he said, having referred to the terms of s.69(3) as they were then, and which are not substantially different now:
"It is stated in that way in the opening paragraph of sub-sec.3, but it appears from the other words of the sub-section that the Judge shall not himself assign counsel, but if satisfied 'that such person is without adequate means to provide defence for himself and that it is desirable in the interests of justice that such an appointment should be made ... shall certify this to the Attorney-General who may if he thinks fit thereupon cause arrangements to be made for the defence of the accused person.'"
...
"I think that the Judge in deciding that question must contrast the state of things which might be expected to occur if counsel were not present with the state of things which might be expected to arise if counsel were present."
...
"I think, too, that in determining the matter one may regard the personal qualifications or disqualifications of the prisoner, or the intricacy of the case, either in point of law or fact or both, or possibly both these things together."
At p 469, he said:
"If the Commonwealth Legislature had wished to enact that all accused persons should be provided with means for their defence, it would have been easy to say so."
And later he said, in a passage particularly relied on by Mr. Gore, at p 470:
"...I quite agree with him that all the Judge has to do so far as appointment is concerned is to certify that the appointment of counsel is desirable, saying nothing about a solicitor. If, however, the section is carefully examined, it seems that the Attorney-General may appoint both counsel and a solicitor if he thinks it necessary."
And later at that same page:-
"I think it possible that the Attorney-General may, on such a certificate as the section contemplates, appoint both."
I do not take Cussen J. in that case as saying that it is necessary for the Attorney-General to make such an appointment, but merely that that is one means by which he could discharge his obligation "to cause arrangements to be made for the defence of (a) person" to whom the section applies.
In my view, on a proper construction of s.69(3), it is not a mandatory requirement that the Attorney-General appoint either counsel or solicitor, or both. One can envisage various circumstances in which that might be an appropriate way to discharge the obligation to cause arrangements to be made. However, it cannot, in my view, correctly be asserted that that is necessary in every case.
Indeed, in many cases the provision of proper financial aid would best meet both the obligations of the Attorney-General under the section and the personal wishes of the person sought to be aided in that, within the financial constraints of the aid granted, the applicant personally may raise questions of suitability of both solicitor and counsel in terms of experience and expertise.
It is not in every case that there should be such a choice. On the other hand, provision of adequate financial aid does not mean that the Attorney-General has not "cause(d) arrangements to be made" as the section requires.
Some support for that view can be gained from the Lord Chief Justice in R. v. Sowden (1964) 1 WLR 1454 at p 1457. That case concerns s.1(1) of the Poor Prisoners Defence Act 1930 which provided that:
"Any person committed for trial for an indictable offence shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have solicitor and counsel assigned to him for that purpose in the prescribed manner, if a certificate (in this Act referred to as a 'defence certificate') is granted in respect of him in accordance with the provisions of this section."
At p 1457, Lord Parker CJ said:
"It has not been easy to ascertain exactly what happened, but the following appears to be the sequence of events. On February 7, 1964, at the end of the committal proceedings before the Wimbledon magistrates' court, he was granted a defence certificate under section 1(1) of the Poor Prisoners' Defence Act, 1930, and in due course he was assigned solicitors and counsel. Pausing there, the solicitor is somebody assigned by the court, whereas the counsel is left to the choice of the solicitor assigned and therefore indirectly the choice of the defendant."
The fact that a solicitor was assigned who, in turn, obtained counsel, in the choice of which the defendant had some say, did not seem to constitute a contravention of the requirement of the section that a person have counsel and solicitor assigned to him. If what is done by way of "causing arrangements to be made" is the provision of funds by which counsel and solicitor can be obtained properly to conduct the defence, then in my view there has been no failure by the Attorney-General to comply with the obligation imposed upon him under the section.
In relation to the requirement "to cause arrangements to be made", in Stiles v. Galinski (1904) 1 KB 615 at p 622, Lord Alverstone CJ said:
"The use of the word 'cause' partly creates the difficulty; if the word could be construed to mean 'take reasonable steps', the same difficulty would not arise; but I think it means more than that - it means that the person upon whom the duty is cast must see that the work specified is done."
It was urged that this consideration supported the requirement that the appointment by the Attorney-General of solicitor and counsel was necessary before his obligation under the section could be discharged. For the reasons that I have given, I reject that submission.
The second ground argued by Mr. Gore was that there was no evidence or other material to justify the making of the decision. It will be recalled that the telex communicating the decision of the Attorney-General stated:
"The arrangements have been drawn up in accordance with the appropriate legal aid fee scales applicable in Queensland for a lengthy and complex trial."
Section 5(1)(h) of the Act provides that one of the grounds on which an order of review may be made is "that there was no evidence or other material to justify the making of the decision". Section 5(3) provides:
"The ground specified in paragraph (1)(h) shall not be taken to be made out unless -
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
The submission on Mr. Maher's behalf was that the respondent based his decision on a basis of fact, namely, that the fee scale set out in the decision was in accordance with the appropriate legal aid fee scales applicable in Queensland for a lengthy and complex trial, when in truth it was not in accordance with any such scale as there is no such scale.
It is true that there is no scale such as is referred to in the telex. Nonetheless, it seems to me that what was sought to be communicated, as the evidence of Mr. Benson acknowledges, was that the nature of the arrangements outlined in the telex was in accordance with the legal aid rates applicable in Queensland for a lengthy and complex trial.
But, independently of that consideration, it seems to me that the objection based on the ground set out in s.5(1)(h) and qualified, as it is, by the requirements of s.5(3), does not apply in these circumstances.
Before it can be said that there was no evidence or other material to justify the making of the decision, so far as is relevant in these circumstances, the person who made the decision has to base the decision on the existence of a particular fact, which fact did not exist. In my view, the decision to provide the assistance referred to in the telex was not based "on the existence of an appropriate legal aid fee scale applicable in Queensland". In no sense was it founded on the existence of such a scale.
What was sought to be communicated in that telex was that the arrangements proposed were not inconsistent with what would be similarly arranged in complex legal trials in Queensland. The evidence establishes that inquiries were directed to the Public Defender, the Legal Aid Commission (Queensland) and the Department of Justice, and, subsequent to those inquiries, the fees proposed were communicated to Mr. Maher.
It is also true, in my opinion, that the quantum of legal aid referred to in the telex is not inconsistent with what is provided in other trials in Queensland. I do not want to be taken as giving any imprimatur to the appropriateness or fairness of any such scale, but simply to indicate that the rates referred to in the telex are not inappropriate when one has regard to what occurs in other trials of a criminal kind in Queensland.
Shortly put, my view of this ground is that the decision was not based on the existence of any such scale. The absence of any such scale is not, therefore, fatal to the legal propriety of the decision.
The third ground - and really it seems to me to be the fundamental source of grievance - is that the decision involved an improper exercise of power contrary to s.5(1)(e) of the Act. Reliance is placed on three aspects of what is said to be an improper exercise of power.
Section 5(2) of the Act relevantly provides:
"(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to -
...
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; ..."
In amplification of this submission, Mr. Gore submitted that three aspects of s.69(3) of the Judiciary Act 1903 should be borne in mind.
As to the first of these, I agree that the object of the section is obviously to ensure that injustice is not caused by the absence of proper provision for the defence of a person charged with serious offences against laws of the Commonwealth.
I also agree that it is not inappropriate to observe that the Attorney-General is the person who is visited with the duty to see that arrangements for the defence of a person so charged are caused to be made. It was asserted that this consideration highlights the need to ensure that a fair balance between prosecution and defence is maintained, and that on no view of the circumstances here could that be said to have occurred.
It is now a fact that the conduct of the trial in which Mr. Maher is engaged is entrusted, so far as its prosecution is concerned, to the Director of Public Prosecutions, who is independent of the Attorney-General. Nonetheless, one can accept that there is a perception of unfairness in a situation where a prosecution team of great number and high calibre is assembled, as appears here, where the prosecution comprises Mr. Callinan Q.C., the President of the Queensland Bar Association, Mr. Griffin Q.C., and junior counsel in support, as well as other forensic assistance of not insignificant value, whereas what is proposed by way of defence is that Mr. Maher be represented by junior counsel and a solicitor.
It may be that one answer to such an imbalance is that there is forensic overkill, both as to cost and number, in the prosecution in this particular trial. However, independently of that consideration, it does not seem to me to be a relevant consideration for the Attorney-General to consider either the personnel or the extent of the representation of the prosecution. What he is obliged to do is to cause arrangements to be made for the defence of the person, and that, of course, has to comprehend both the nature and complexity of the charge under consideration.
In that sense, of course, one can understand the directing of attention to the elaborate nature of the prosecution personnel in this particular case; it is conceded at both ends of the bar table that this will be a lengthy and complicated trial.
The third aspect of s.69(3) of the Juciciary Act 1903 referred to by Mr. Gore relates to the question of the giving of sufficient time. The question of when a trial is to commence or whether it should be adjourned if under way, cannot be used as a basis to impugn the correctness of a decision to cause arrangements to be made of the kind with which we are presently concerned.
If proper arrangements have been caused to be made by the Attorney-General, then the fact that time is needed so that proper defence can be made is not a consideration for the Attorney-General.
It is clear beyond argument that natural justice demands that a person be given the right properly to answer a charge brought against him.
Lord Widgery, C.J. said in The Queen v. Thames Magistrates Court, Ex parte Polemis (1974) WLR 1371 at p 1375:
"... nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it."
His Honour later referred to the observations by Viscount Haldane L.C. in Local Government Board v. Arlidge (1915) AC 120 at p 132 where he said:
"My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made."
No one, of course, can quarrel with the correctness of those observations. However, the question of the adequacy of time in which to prepare is a matter with which neither the Attorney-General nor this Court is presently concerned, though it is, of course, nonetheless, a fundamental requirement of our system of justice.
As to the ground that the decision was an improper exercise of power, the allegation, shortly put, is that the Attorney-General failed to take relevant considerations into account. These considerations were:-
(i) the length and complexity of the trial of the applicant;
(ii) the nature of the arrangements made for the prosecution of the applicant;
(iii) the commencement date of the trial of the applicant;
(iv) the fees payable by the Legal Aid Office
(Queensland) for a lengthy and complex trial and for summary criminal trials; and
(v) the remote prospect of obtaining counsel and solicitor for the trial of the appellant on short notice, and on the terms contained in the decision.
There is no evidence before me that the respondent failed to take either of these first two considerations into account so far as they are relevant. As to the third consideration, he was fully aware through the efforts of Mr. Ganim, almost twice daily in fact, of the progress of the particular trial. As to the other two considerations enumerated, the evidence before me shows that inquiries have been made on the Attorney-General's behalf in relation to the nature of fees paid by the various agencies in Queensland in respect of either the legal aid or public defence extended to persons charged with criminal offences in Queensland.
As I have indicated, a comparison of the resources being utilized by the prosecution with the provision made for the defence and the time available within which adequately to prepare are not considerations which impinge on the decision of the Attorney-General.
I can accept that there is a sense of grievance in what is seen to be disparity between the aid offered the applicant and the resources, at the taxpayers' expense, being utilised by the prosecution. However, when one has regard to the evidence as to the manner in which legal aid or public defence is extended to people in Queensland, I reject the submission that the exercise by the Attorney-General of the power given to him under s.69(3) was so unreasonable that no reasonable person could have so exercised the power.
It has to be accepted that this is not, in any sense, a review on the merits of that decision. Consistent with the extent of the judicial power of the Commonwealth, the power of the Federal Court under the Administrative Decisions Judicial Review Act (1975) is to examine decisions made by decision- makers for errors of law, which are more particularly set out in the bases by which those decisions may be reviewed. It is not the function of this Court to either approve or disapprove of any such decision, but merely to rule on whether the requirements of sound administrative law for which the Act calls have been complied with.
The final matter to which attention has to be directed concerns the events involving the appointment of Mr. Mackay's firm as Mr. Maher's solicitors. As I have indicated, I have directed my attention to the grounds suggested on Mr. Maher's behalf as to why the decision contained in the telex of 10 May, 1985 was reviewable. I have ruled on those objections, rather than seek to consider this application on any discretionary ground given by the Act, on the basis that subsequent events may or may not have overtaken the effect of the decision made by the Attorney-General as expressed in the telex.
As I made plain in the course of submissions, I am concerned with reviewing the decision of the Attorney-General contained in the telex of 10 May, 1985. For the reasons that I have given, the application for an order of review of that decision should be dismissed.
I order that the applicant pay the respondent's costs (including reserved costs), to be taxed if not agreed.
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