Ogawa v Attorney-General (No 2)

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FEDERAL COURT OF AUSTRALIA

Ogawa v Attorney-General (No 2) [2019] FCA 1003

File number: QUD 381 of 2018
Judge: LOGAN J
Date of judgment: 28 June 2019
Catchwords:

ADMINISTRATIVE LAW – judicial review – pardoning power – where the applicant lodged a petition for a pardon for convictions made by a State court exercising federal jurisdiction – application for review of a decision by the Attorney-General not to refer the matter to the Governor-General or to the Queensland Court of Appeal – whether State court’s contempt powers picked up in its exercise of the federal jurisdiction – where State provisions regarding the Prerogative of Mercy were picked up – whether exercise of the Prerogative of Mercy is justiciable – whether the process undertaken before the Prerogative of Mercy is exercised is justiciable.  HELD – declaratory relief can be granted in respect of denials of procedural fairness or jurisdictional errors committed by the Attorney-General.

ADMINISTRATIVE LAW – whether Attorney-General erred in his decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal – whether Attorney-General should have referred a contempt conviction which was not subject to the petition – Attorney-General was limited to the scope of the petition – where there was no error in exercise of power to convict the applicant for contempt.  HELD – the failure to refer the contempt conviction was not a jurisdictional error.

ADMINISTRATIVE LAW – whether Attorney-General erred in his decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal – where evidence was given at the committal, but not at the criminal trial, which arguably called into question the applicant’s conviction – where there is recent High Court authority which is arguably at variance with the law as applied by the Queensland Court of Appeal in the applicant’s appeal against conviction – where Attorney-General decided himself none of the grounds in the petition established a miscarriage of justice – whether it is the role of the Attorney-General to determine if a miscarriage of justice is positively established – whether jurisdictional error was material.  HELD – jurisdictional errors were material.

CONSTITUTIONAL LAW – Royal Prerogative of Mercy – where executive power of the Commonwealth is vested in the Governor-General by s 61 of the Constitution – where Prerogative of Mercy elivened Attorney-General’s petition for exercise of discretion to refer a case to Queensland Court of Appeal – where the Attorney-General refused either to recommend the favourable excuse by the Governor-General as to refer the case – whether the decision and conduct of the Attorney-General are amenable to judicial review.  HELD – the conduct of the Attorney-General in refusing to make a recommendation to the Governor-General to exercise the Prerogative of Mercy may be subject to declaratory orders.  HELD – the refusal to defer a case was amenable to judicial review – Judiciary Act 1903 (Cth) ss 39B, 68; Criminal Code 1899 (Qld) s 692A, Constitution ss 61, 75(v).

Legislation:
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Details
Case
[2019] FCA 1003
Decision Date

CaseChat Overview and Summary

In the matter of Ogawa v Attorney-General (No 2), the Federal Court was asked to review the Attorney-General's decision not to refer a petition for a pardon to the Governor-General or the Queensland Court of Appeal. The petitioner, Dr Ogawa, had been convicted by a State court exercising federal jurisdiction for using a carriage service to make threats and to menace, harass or cause offence. The primary legal issues before the court were whether the Attorney-General had erred in his decision not to refer the petition for a pardon, and whether the exercise of the Royal Prerogative of Mercy is justiciable.

The court held that declaratory relief could be granted in respect of denials of procedural fairness or jurisdictional errors committed by the Attorney-General. The failure to refer the contempt conviction was not a jurisdictional error, as the Attorney-General was limited to the scope of the petition. However, the court found that the jurisdictional errors made by the Attorney-General were material, particularly in relation to the evidence presented at the committal that was not led at the trial. The court concluded that the refusal to defer a case was amenable to judicial review under the Judiciary Act 1903 (Cth) and the Criminal Code 1899 (Qld), and that the conduct of the Attorney-General in refusing to make a recommendation to the Governor-General to exercise the Prerogative of Mercy may be subject to declaratory orders.

The court granted the petitioner declaratory relief in relation to the Attorney-General's decision not to make a favourable recommendation to the Governor-General for the granting of a pardon. The court also quashed the decision not to refer the petitioner's case to the Queensland Court of Appeal and directed the Attorney-General to consider the petitioner's request for the referral of her case according to law. The court further ordered the Attorney-General to pay the petitioner's costs of the proceeding.

Orders

Orders of the court

1. In relation to so much of the respondent’s decision of 20 March 2018 as entailed deciding not to make a favourable recommendation to His Excellency the Governor-General in relation to a request by petition by the applicant for the granting of a pardon to her, IT BE DECLARED THAT:

(a) The exercise of the power under s 61 of the Constitution to grant, in the exercise of the Royal Prerogative of Mercy, a pardon is not, by convention, limited to cases where there is satisfaction that the petitioner is morally and technically innocent of the offence but is a flexible power the exercise of which may be adapted to meet the circumstances of the particular case.

(b) The applicant is not precluded by the respondent’s decision of 20 March 2018 from lodging a further petition seeking the granting to her of a pardon, nor is the respondent precluded by that decision from making a recommendation to His Excellency the Governor-General that she be granted a pardon.

2. In relation to the respondent’s decision of 20 March 2018 not to refer the applicant’s case in relation to her convictions for offences of using a carriage service to make a threat to kill contrary to s 474.15(1) of the Criminal Code (Cth) (Criminal Code) and using a carriage service to menace, harass or cause offence contrary to subs 474.17(1) of the Criminal Code to the Queensland Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld), as applied by s 68 of the Judiciary Act 1903 (Cth):

(a) A writ of certiorari issue quashing the decision; and

(b) A writ of mandamus directed to the respondent issue requiring that the respondent consider the applicant’s request for the referral of her case according to law.

3. The respondent pay the applicant’s costs of the proceeding, which are fixed as to travel expenses in the amount of $250, and as to printing costs in the amount of $250, making for a total of $500, together with such filing or other fees as have been paid by the applicant. As to the filing fees, the respondent is to pay such amount thereof as is certified by the Registrar to have been paid by the applicant in respect of this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Attorney made no error in not referring the contempt conviction to the Queensland Court of Appeal.Further evidence? The evidence to which Dr Ogawa referred was that given by a Mr Christopher Young at her committal, but which was not in the result, led at her trial. Mr Young gave evidence at the trial but he was not asked about a particular statement which he had made in the committal proceeding when under cross-examination in that proceeding. Keane JA observed in R v Ogawa, at [81]:The two charges under s 474.15(1) of the [Criminal Code] involved the appellant making a threat to Mr Christopher Young, a barrister and Associate to the Chief Justice of the Federal Court at the relevant time, to kill two Federal Court registrars with whom she had previously dealt with and was currently dealing with, namely Ms Jane Mussett (count 2) and Mr Tim Conrad (count 3). The appellant's threat arose in the context of her seeking to have proceedings that she had commenced in the Federal Court removed from the docket of Justice Lander in South Australia to that of Justice Finkelstein in Victoria.As to these two charges, his Honour later concluded, at [122]:[122]The evidence of Mr Young establishes that the appellant made two distinct threats, one against each of the registrars. The appellant was reported as relevantly saying: “I will kill Jane Mussett. I will kill Tim Connard.” The making of each of those threats by the use of the telephone was a contravention of s 474.15(1). This appears to have been a reference to the evidence which Mr Young gave at the trial, not additionally to the evidence which he gave at the committal. In cross-examination at her committal, this admission had been made by Mr Young in relation to the context in which the threat had been spoken to him by Dr Ogawa:And did she appear to be emotionally upset in the sense that she was tearful or crying? – Yes. That this evidence was available to be led at trial and was not led does not mean that any reference was necessarily doomed to fail. The issue in such a reference is whether there has been a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124. It is not whether, insofar as particular evidence is relied upon, that evidence is “fresh” in the sense that it could not, with due diligence, have been obtained at the time of trial: R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 (R v Daley). Also at the committal, Mr Young had stated that he had identified the threat to kill the Registrars as “firm” and “strong” and stated that the threat was made, “almost like in a seething tone”. But he also stated, “she didn’t appear to understand or appreciate the weight of what she’d said” and that she continued “to talk in a – an agitated state”; and “seemed to me not to hear or to listen to what it was that I was saying that made me reach the assessment that she – that she hadn’t understood the gravity of it”. It was common ground that a submission made by Dr Ogawa in her petition that a key element of s 474.15(1) of the Criminal Code is an intention to instil fear in the person to whom the threat is made was correct. Mr Young’s statements at her committal did go to this element.

Decision

Reasons for decision

As I above and, earlier, other federal judicial officers have observed, Dr Ogawa was adversely affected, prior to the offending conduct, by truly lamentable lapses in federal public administration, including by the now former Migration Review Tribunal. It is by no means impossible to see how, not misled by an erroneous understanding that convention limited the occasion for its exercise, viewing the offending conduct against this wider background and taking into account whatever more recent antecedents are placed before him, the Governor-General might, on advice, decide to temper the justice of Dr Ogawa’s convictions and sentences with the mercy of a pardon. It is that quality of the Royal Prerogative of Mercy which was so eloquently captured by William Shakespeare in the passage from The Merchant of Venice which introduced these reasons for judgment. That decision, however, it must be emphasised, is an evaluative judgment for the Governor-General in Council, not for the Court. For the Court to grant declaratory relief, it is enough that there is a justiciable controversy and that the granting of such relief can be seen to be of practical utility. That there is an opportunity to seek a favourable outcome means that there is practical utility in the granting of such relief.DECISION TO REFUSE TO REFER A CASE TO THE QUEENSLAND COURT OF APPEAL In Martens, I canvassed the then state of the authorities in relation to the origins of a reference power such as that found in s 672A of the Queensland Criminal Code, the role of a Law Officer in deciding whether to refer a case pursuant to such a power and the nature of the jurisdiction exercised by an appellate court on such a reference. I shall not repeat what is there stated but instead incorporate the same by reference. I continue to adhere to the views on these subjects which I expressed in that case. In particular, I respectfully agree with the analysis offered by Lander J as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 (von Einem v Griffin) at 138-140, as extracted by me in Martens, at [55]. Further, contrary to the Attorney’s submission, so far as I am presently concerned when sitting in the original jurisdiction, that a reference decision is amenable to judicial review is not unsettled. It is concluded by the Full Court’s judgment in Yasmin v Attorney-General. The ultimate outcome in the Queensland Court of Appeal in R v Martens, the resultant quashing of a conviction, and the vindication of a man’s liberty (exceptionally, Martens had been granted bail, pending the outcome of the reference: qv R v Martens [2010] 1 Qd R 564), underscores the injustice attendant in any other conception of the amenability of a reference decision to judicial review. There are three aspects to the Attorney’s reference decision:(a)the contempt conviction;(b)further evidence; and(c)subsequent authority in relation to what constitutes harassment. The parties addressed each of these aspects. I consider each of these below, having regard to the approach adopted by Lander J in von Einem v Griffin and by me in Martens.The contempt conviction

Ratio Decidendi

Legal Principle Established

It is quite plain from Cox, at [23], that His Honour Judge Long SC, whose considerable knowledge and experience in criminal law and practice is well-known in Queensland, considered that the observations made in R v Ogawa in relation to harassing may require reconsideration in light of Monis:[23]Also, the breadth of the approach taken in R v Ogawa may require consideration in the light of the subsequent decision of the High Court in Monis v R. Although made in the context of direct consideration of the issue of offensiveness, not only did the approach of the majority observe that “a communication which has the quality of being menacing or harassing can be seen to be personally directed and deliberately so,” it was further observed that: “the words ‘menacing’ and ‘harassing’ imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety.”[Emphasis added, footnote reference omitted] The judge who decided Starkey was His Honour Judge Dorney QC, who has since retired from the District Court. His Honour’s reputation for excellence in many areas of the law was well-known in Queensland at the time of his appointment and only enhanced by his judicial service. Why that was so is, with respect, well exemplified by the erudite analysis in Starkey of the ramifications of Monis in relation to s 474.17 of the Criminal Code. His Honour stated, at [3]:[3]Although the learned Magistrate referred to the words of the relevant section, there was no discussion of any kind about the precise nature (i.e. according to a wide or narrow interpretation) of the use alleged to be “menacing, harassing or offensive”. Given the narrow nature of the interpretation approved of by the joint judgment in the High Court, the learned Magistrate erred in his approach in not considering the seriousness of the use. Furthermore, contrary to Crowther v Sala, he relied upon “subjective” evidence – finding that a particular recipient’s concerns were “genuine” - when what was required was proof of such use that “reasonable persons” would regard the conduct as being, in all the circumstances, of the relevant type and that that required an “objective assessment of the likely impact of (the) conduct”: per McMurdo J, with whom Muir J (as he then was) agreed, at 135 [42]. It is recognised that the Queensland appeal decision was primarily concerned with the “fault element” (meaning that, following that objective assessment, it must also be proved that the defendant “either intended that it be so or was reckless as to that fact”): at 136 [47].[Emphasis added, footnote reference omitted]What followed in Starkey was an elaborate consideration by Dorney DCJ of how the subject appeal from a Magistrates Court fell to be determined in light of Monis. Of particular present relevance, given the analysis offered by the Attorney’s Department in the “Summary” quoted above is the following part of Dorney DCJ’s consideration, at [12]:Correct meaning of “menacing, harassing or offensive” [12]Given the 3:3 outcome in Monis, (and its consequences) it is to the joint judgment of Crennan, Kiefel and Bell JJ that recourse is had to determine the content of the relevant tests. It is acknowledged that each of the remaining 3 separate judgments also accepted a narrow definition of the relevant wording. It must be said, from the outset, that no judgment in Monis held other than the relevant standard to be applied to the alleged use “is the view of a reasonable person taking into account all the relevant circumstances”: for instance, at [261]. Additionally, considering Monis in more detail, it needs to be acknowledged that the offence in question in that case that was alleged was pursuant to s 471.12 (which dealt with “a postal or similar service”, although, virtually identical wording is otherwise used in both provisions). Additionally, for s 474.17, unlike s 471.12, s 473.4 required certain matters to be taken into account in determining whether reasonable persons would regard particular material, or a particular use, of a carriage service being in all the circumstances “offensive”, such matters including “the general character of the material” and “the standards of morality, decency and propriety generally accepted by reasonable adults”. As was remarked upon in the joint judgment, it may be observed that many of the matters raised for consideration by s 473.4 would be taken into account in the application of the reasonable persons’ standard in s 471.12: at [263]. Finally, in this regard, the question in the High Court concerned the constitutional validity of s 471.12. Therefore, the matter of whether reasonable persons would regard the content of the communications under consideration there as relevantly “offensive” was not a matter which fell to be determined there: at [255]. Even so, the context of the provision involves more than the mere causing of the (menace, harassment or) offence “to the recipients” and, while the characterised use can arise from the content, the method of the use is also relevant: at [261] and [288]. Taking all those factors into account, it would appear that the nature of the actual recipient, or recipients, is relevant to the objective determination.