Ogawa v Attorney-General of the Commonwealth of Australia & Ors

[2021] HCATrans 97

[2021] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B71 of 2020

B e t w e e n -

MEGUMI OGAWA

Applicant

and

ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Second Respondent

ATTORNEY‑GENERAL FOR THE STATE OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 9.57 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friends, MR D.P. HUME and MR D.P. FARINHA, for the applicant.  (instructed by Marque Lawyers)

MR C.J. HORAN, QC:   May it please the Court, I appear with MR G.J.D. DEL VILLAR, QC for the first respondent.  (instructed by Australian Government Solicitor)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the second respondent.  (instructed by Crown Law (Qld))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the third respondent.  (instructed by Crown Solicitor’s Office (NSW))

KIEFEL CJ:   Yes, Mr Kirk.

MR KIRK:   Thank you, your Honours.  I should start by noting that the special leave application was filed four business days late in circumstances outlined in the affidavit of Ms Peacock.

KIEFEL CJ:   Yes.  I understand the extension is not opposed.

MR KIRK:   Yes, I understand that to be so.

KIEFEL CJ:   You have the extension.

MR KIRK:   May it please the Court.  Your Honours, can I start, before I get to the interesting legal issues in the case, by briefly setting out the context in which they arise?  Just to remind your Honours briefly, my client, Dr Ogawa, was convicted in 2009 of four offences, two of using a carriage service to make a threat to kill and two of using a carriage service to harass by way of repeated emails and phone calls.

A few years later, in 2014, with the assistance of counsel, she made a careful and thorough application to the Commonwealth Attorney, seeking that the Governor‑General grant a pardon and/or that the matter be referred back to the Queensland Court of Appeal pursuant to section 672A of the Criminal Code (Qld). After lengthy delay, some four years, the Commonwealth Attorney finally considered the application. He refused the referral application and recommended to the Governor‑General that the petition for mercy be rejected, which duly happened.

Now, there were two significant matters raised in the application put by Dr Ogawa.  First, that since her conviction and her failed appeal to the Queensland Court of Appeal and her failed special leave application to this Court, this Court had handed down its decision in Monis in 2013 which she argued materially affected the construction of one of the two offences with which she had been convicted - 474.17.

The other significant matter she sought to rely on was that at her trial where she was representing herself evidence from a key witness that had been given at the committal had not been led at trial and that that may have cast a significantly different light on her threats to kill in breach of the other provision.

Now, in the Attorney’s refusal decision – and he effectively adopted a memo that had been provided to him – there were four errors of which my client complained, and I can seek briefly to identify those errors and then I will jump straight to how the Full Court dealt with them.

First, just in relation to the application for the pardon, it was alleged that the – well, it was pointed out that the Attorney’s memo indicated that the pardon power was limited “by convention”, such that:

a full pardon should only be recommended to the Governor‑General if you are satisfied that the convicted person is:

a)        morally and technically innocent –

The briefing memo went on to say that the matters raised did not meet that standard.  So, the alleged error – and found by the trial judge – was that this constituted an improper hearing of the broad scope of the power of mercy.

The second error – and the second and third errors relate both to the pardon point and the referral point – the second one was that the Attorney wrongly considered that the reasons in Monis were not relevant, essentially because they concerned a different provision of the Criminal Code even though very similar language was used.

The third alleged error was that the Attorney’s memo gave great weight to the fact that Dr Ogawa had been heard by the Queensland Court of Appeal and, indeed, special leave had been refused, when that was not an answer to the main point she was making, namely, the new development in law in Monis and evidence that had not been considered by the trial court, and the issue had not been raised on the appeal in the Queensland Court of Appeal.  The fourth error, which relates just to the referral issue, was that the Attorney had applied the wrong test as to assessing the referral issue.

Now, if I can turn then to how the Full Court dealt with the pardon issue within the section 61 power of mercy.  As I indicated, the primary judge had found that the Attorney had, in effect, fettered himself.  The primary judge considered that in light of the decision of this Court 113 years ago in Horwitz v Connor, it was not open to him to give direct relief against the decision of the Governor‑General to refuse the pardon.  But he could give declaratory relief, and that was the relief that he gave, in effect confirming or stating that the pardon power is not limited to cases of moral or technical innocence.

In terms of how it was then dealt with in the Full Court, the Full Court of course overturned that declaration, upheld the Commonwealth Attorney’s appeal.  It is notable that in so doing it did not actually grapple with his Honour’s analysis of the error, nor did it, for example, grapple with the argument put by I think two of the Attorneys below that the fettering doctrine has no application with respect to the power of mercy. 

If I can take your Honours to the reasons the Court did give, going to application book page 74 starting at paragraph 72.  Three reasons were articulated - it is not clear that they were all reasons against my client.  Starting with the first at paragraph 72, your Honours will recall that the Full Court said:

we doubt the validity of the distinction drawn by the primary judge regarding the availability of judicial review of the Attorney‑General’s recommendation –

as opposed to the:

ultimate decision . . . in circumstances where a Vice‑Regal officer is bound to act “in conformity with the advice given” to him or her, it would appear illusory to differentiate –

It is not entirely clear that is being used as a reason against my client.  It certainly should not have been.  This Court ‑ ‑ ‑ 

GORDON J:   But it does not matter, though, does it, Mr Kirk, because - that is the first reason.  Even if that is neutral you have two more hurdles you have to overcome.

MR KIRK:   Let me jump to the second, your Honour.  The second, in paragraph 73, was that – and again, it is not clear that this is against my client.  Their Honours say, in the first sentence:

we doubt whether it is correct to state that the exercise of Constitutional executive power . . . is totally immune from judicial review -

although they do not go on to exactly decide that.  We do note that that is put against us, however, by the Attorney for the Commonwealth in particular which, in its response to the special leave application, relies on Horwitz, and says that is an answer. 

We have asked for your Honours to be provided with a copy of Horwitz, which I am sure your Honours are familiar with anyway, and if I could just make some very brief points about it.  It is a decision of one paragraph.  It was delivered ex tempore.  It is only, with respect, a decision refusing special leave.  It is only directed to a specific issue, ultimately about the jurisdiction of courts to grant mandamus, not declaratory relief, to the Governor in Council.

KIEFEL CJ:   Mr Kirk, the real question in relation to the executive power and the Attorney’s decision is not really one about immunity of executive power, it is about whether, as you outlined earlier, the adoption of the convention as a basis for consideration of the matter is a fetter upon the power.  Speaking for myself, given that if the pardon was granted your client would be taken never to have been convicted of the offence, I do not have any difficulty seeing that what is called the “convention”, namely whether or not the person is morally or technically innocent, is a perfectly relevant consideration.

MR KIRK:   Indeed.  I would not have argued to the contrary.  We did not argue below that it may be a relevant consideration.  The core point found by Justice Logan, which we reiterated on appeal, is that it does not exhaust the power, even for a full power and - - -

KIEFEL CJ:   That leaves the question, given that it is an obvious hurdle for your client, what trumps it?

MR KIRK:   Because if the power is not fettered by that consideration – and we submit that his Honour found that the Attorney approached it as though it was – a whole range of other grounds could come into play.  The primary judge gave the example of Alan Turing, who was the subject of a pardon posthumously – decades later – regardless of technical innocence or guilt of the issue of a conviction of gross indecency, but because of the change of social mores.  His Honour gave another example about some prisoners in Britain who had acted bravely in saving a prison officer from harm in a certain circumstance - - -

KIEFEL CJ:   What do you say should have been taken into account here in your client’s favour?

MR KIRK:   All of the circumstances – that would include, for example, the evidence – the second point I raise – the evidence that had not been led at trial related to how the witness in question had perceived and understood the state of mind, if I can put it that way, of Dr Ogawa when she was making the particular threats to kill - - -

GORDON J:   But, Mr Kirk, both of those matters – that is the evidence of Mr Young to which you have just referred, and the so‑called hurdle – are addressed in paragraphs 77 and 78.  They are the third reason put by the Court of Appeal, the Full Court.

MR KIRK:   Yes, your Honour.  Can I turn directly to those - - -

GORDON J:   Just so I am clear, even if technically and morally innocent is a minimum, it has been addressed – it is a factor – it has been addressed – the additional things that you would take into account include Young and also the Monis consideration.

MR KIRK:   Yes.

GORDON J:   What is missing?

MR KIRK:   Because in the way his Honour the primary judge found it and the way we put it, those other issues had not been addressed in the sense that the Attorney had not stood back and said, look, regardless of moral and technical innocence, taken overall, is it possible to grant a pardon and should I do so, should I recommend it?  The way it was put below is that it was just assessed through the prism of moral and technical innocence where there were broader considerations to be brought into play.  That was the fettering.  I accept by the way the Commonwealth Attorney says, look, I did not fetter myself and, by the way, if I did, I am entitled to.  But that did not persuade the primary judge and the Full Court did not grapple with it.

GORDON J:   Well, I think they did.  I think what they said was, as I understand 77 read – and 78 is to be understood as being the same approach - they say we have looked at them, we are looking at them in the context of potentially a test of “technically and not morally innocent”, but we think they are matters that more appropriately are considered by the Court of Appeal.

MR KIRK:   That is what, with great respect, is quite hard to understand about this paragraph.  If your Honours look at paragraph 77, third line, their Honours say:

That it is because, irrespective of whether there was reviewable error . . . there was no real prospect that a state of satisfaction could be reached that Dr Ogawa was “innocent” ‑

and then goes on to say, as your Honour has pointed out, it is better dealt with by the Court of Appeal.

But the Attorney had also decided not to refer to the Court of Appeal and it is very hard to see, with respect to the Full Court, if there is potential reviewable error, why is it not reviewable?  The answer made should be paragraph 79 – and that is what my learned friends have said in their written responses – but paragraph 79, with great respect, manifests a particular further kind of error because what it appears to argue is that, look, for this sort of issue, the legal argument is in a sense the merits.  The key sentence is the last couple - their Honours say:

In the absence of manifest legal error or a denial of procedural fairness, that assessment remained a matter within the decision‑making freedom entrusted to the Attorney‑General . . . no legal error . . . was susceptible of judicial scrutiny. 

So, their Honours appear to introduce some new kind of intermediate notion of manifest ‑ ‑ ‑ 

KIEFEL CJ:   I took their Honours merely to be saying that the decision was within power, and that you are not in the realm of jurisdictional error. 

MR KIRK:   Well, it is not clear, in our respectful submission, your Honour, because, if one reads that back with the reference in paragraph 77 to – maybe, irrespective of whether there is reviewable error – it does appear as though their Honours are setting some kind of higher threshold for review, and, as this Court has addressed this week, a couple of days ago, Australian public law has evolved a lot in the last few decades, and to introduce now some kind of intermediate category between error of law and jurisdictional error and call it manifest legal error, is to confuse things, in our respectful submission.  Can I move on then to the referral issue fairly quickly?

KIEFEL CJ:   Yes. 

MR KIRK: So, this arises under section 672A. Can I go straight to, again, the Full Court’s reasoning at page 79 of the application book. At paragraph 84, about fifth line, and the Full Court here is discussing the decision in Holzinger of the Queensland Court of Appeal, and their Honours list five grounds, five of the standard grounds of review - procedural unfairness, fettering, unreasonableness, relevant considerations and no evidence and the Full Court says, well the Court of Appeal has rejected all of those and we cannot distinguish in substance the grounds that Dr Ogawa seeks to raise, and those grounds include misdirecting yourself, asking yourself the wrong question and so forth. 

What we have to say about that, firstly, with respect, is that - actually to pick up a phrase the Full Court uses at paragraph 90, they say that the effect of this is that the 672A power is:

generally not susceptible to judicial review -

That is in the second and third line. 

GORDON J:   Absent “bad faith or fraud”. 

MR KIRK:   Yes, they do accept that possibility ‑ ‑ ‑ 

GORDON J:   In paragraph 84, fourth‑last line. 

MR KIRK:   Yes, thank you, your Honour.  That is an extremely confined view of potential judicial review, and that is Queensland says - in its response it suggests that:

there was no implied limit upon its exercise which could render it susceptible to –

judicial review.  Now, our respectful submissions in response to that are we would note actually what an earlier Full Court comprising Justice Kenny, Robertson and Mortimer had said in Yasmin.  Your Honours would recall that is referred to in paragraph 88, and their Honours say here:

we see no inconsistency between Yasmin and Holzinger.

In Yasmin, the issue was again the Attorney had sat on an application for a referral for a very long time and mandamus was brought, and the Full Court there held that mandamus was available to compel him to consider the application for a referral.  The Full Court said in that case, at paragraph 72, if I could just quote two sentences:

the power, like the mercy prerogative itself, has another and broader aspect.  It operates as an important safeguard, and mechanism, to correct miscarriages of justice. 

We respectfully embrace that, and if that is so, it has an important safeguard role to correct miscarriages of justice.  It cannot be said, in our respectful submission, that it has no significance and affects no legal rights or interests of the individual, which is part of the reasoning lying behind Holzinger, for example.  There is no individual interest at stake.  Well, that cannot be so, seen in the context of Yasmin.

If it is capable of enforcement by mandamus to require the Attorney to consider it, at the least, why should it also be so completely shorn of the other usual implied limitations, conceivably procedural fairness ‑ ‑ ‑ 

KIEFEL CJ:   Mr Kirk, can you go so far as to say that the Attorney was bound to consider possible miscarriage?

MR KIRK:   Yes, that is part of our argument, and it ties to the character of the errors we allege, which I went to earlier, which include, in effect, asking himself the wrong question.  It is very hard to see why that would not be a matter capable of judicial review, in our respectful submission.  In relation to the ‑ ‑ ‑ 

GORDON J:   It is an interesting submission, is it not, really, because when you are looking at this referral power and you look at the principles set out in Holzinger, they are principles which are directed at ensuring that the criteria or the factors or matters to be taken into account are quite broad, including matters that are not otherwise admissible in court, a whole range of things. You seek to, in effect, confine it the other way.

MR KIRK:   No, I do not think we are seeking to confine it, your Honour, we are just seeking to say that one of the things the Attorney must consider is if there is a reasonable possibility.  We say it is a mandatory element of consideration, for example, is there a reasonable possibility that there has been a miscarriage of justice?  That flavour, your Honour would have seen, comes through Justice Logan’s judgment too.  I recognise there are different ways of reading his Honour’s judgment, but that is at least a reasonable way of reading it.

We are not saying that exhausts the field by any means, we are not saying it does not include broad and encompassing other matters, but at least that, that there is a reasonable possibility of miscarriage of justice, and in so doing, by the way, properly to direct yourself as to the law.  So, we rely on M61 and…..for example, that it is necessary to, when exercising a discretion like this, properly apply legal principle.  In our respectful submission, the Attorney did not do that.

GORDON J:   But your minimum requirement is really having, as I see it, a second right of appeal.  It sort of conflicts with the principles of finality of decision‑making.

MR KIRK:   No, your Honour, with respect, we are not seeking a second right of appeal, because what we are saying is the Attorney must direct himself properly.  We do not say he is then obliged to refer it, he as he then was.

KIEFEL CJ:   Your possibility of miscarriage ground is based largely upon Monis, and Monis not having been taken into account.

MR KIRK:   Yes.  It is not the only factor, but it is the most significant one, your Honour.

KIEFEL CJ:   The effect of Monis is that, for cases such as harassment or offensive language, there is a level of seriousness involved in the nature of the offence.

MR KIRK:   Correct, and also an effect or likely effect on the recipient.  In other words, it is not just a matter of making lots of irritating emails or phone calls, which was the real sin of my client leading to the conviction, it is that it has a significant potential effect. 

KIEFEL CJ:   It is difficult to see how your client’s conduct, so far as its effect on others, could be regarded as other than serious.

MR KIRK:   Well, that would be our respectful submission, and if your Honours actually go very briefly and finally to – in the decision of the primary judge, this is dealt with at page 35 of the application book.  Sorry, your Honour, I just ‑ ‑ ‑

KIEFEL CJ:   Finish your submission.

MR KIRK:   Thank you, your Honour.  There is a quote at the top of the page from the Queensland Court of Appeal decision, paragraph 129.  If your Honours see the last bolded sentence about what the jury was entitled to conclude, that does focus just on frequency and quantity as opposed to actual effect or likely effect on a recipient.  If it please the Court.

KIEFEL CJ:   Mr Horan, we will not need to trouble you or the other parties. 

In our view, there are no real prospects of success on appeal in this matter sufficient to warrant a grant of special leave.  Special leave is refused.

AT 10.18 AM THE MATTER WAS CONCLUDED