Pepper v. Attorney-General for the State of Queensland

[2008] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

Pepper v Attorney-General for the State of Queensland
[No 1]  [2008] QSC 016

PARTIES:

NOEL JOSEPH PEPPER
(applicant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)

FILE NO:

SC No 9966 of 2007

DIVISION:

Civil

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

11 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 12 February 2008

JUDGE:

Fryberg J

ORDER:

Respondent’s application dismissed

CATCHWORDS:

Administrative law – Judicial review – Reviewable decisions and conduct – Decision on petition for pardon – Justiciability 

Criminal Code 1889 (Qld) s 672A

Von Einem v Griffin (1998) 72 SASR 110 distinguished

COUNSEL:

Applicant:  Self represented
Respondent:  M Hinson SC

SOLICITORS:

Applicant:  Self Represented
Respondent: B Stead (Crown Solicitor)

[2008] QSC 16

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No 9966 of 2007

NOEL JOSEPH PEPPER	Applicant
and
THE STATE ATTORNEY-GENERAL	Respondent

BRISBANE

..DATE 11/02/2008

ORDER

HIS HONOUR:  This is an application by the respondent for an order staying or dismissing an application by a prisoner for judicial review of decisions relating to a petition which he has made to the Governor for a pardon.

The terms of the application are a little diffuse but essentially for present purposes it is enough to refer to the application as amended and in particular to the decision of the Attorney-General made on the 31st of March 2007 not to refer the whole of the applicant's case to the Court of Appeal and the decision of Her Excellency the Governor made on or about the 12th of June 2007 not to pardon Mr Pepper.

I note in passing that Her Excellency's decision as notified by her official secretary was not to pardon or refer the case to the Court of Appeal.  It seems that Her Excellency was wrongly advised about that.  Before me Mr Hinson, for the Attorney-General, did not seek to suggest that Her Excellency possessed any power to refer the matter to the Court of Appeal.

On behalf of the Attorney-General Mr Hinson has submitted that neither decision is justiciable. In support of that submission he has relied on the decision of the South Australian Full Court in Von Einem v. Griffin (1998) 72 SASR 110 and also on the cases there cited. The two decisions in the present case are of a different quality from that there discussed. The decision of the South Australian Governor was made in the exercise of the royal prerogative, a prerogative delegated to the Governor, I infer by letters patent appointing the Governor. In this State the power of the Governor to grant a pardon is statutory: see s 8(b) of the Constitution (Office of Governor) Act 1987 and more relevant to the present circumstances, s 36 of the Constitution of Queensland Act 2001. It is therefore possible to argue that the vice-regal decision is made "under an enactment" within the meaning of the Judicial Review Act.

The second decision challenged is that of the Attorney-General who has a power granted by s 672A of the Criminal Code to refer the whole of a petitioner's case to the Court of Appeal on his consideration of a petition for the exercise of the pardoning power having reference to a conviction. That power was one which the Attorney might have exercised, but which he decided not to exercise, on the 31st of March 2007. Again that is a decision under an enactment and it seems to me it is a decision which fits within the meaning of "decision" to which the Judicial Review Act applies: see s 4 of that Act.

The decision in Von Einem was not made pursuant to any statute such as the Judicial Review Act. It took into account a number of historical considerations relating to the prerogative power of the Crown. It referred to a number of cases which have seen some waning of the strictness with which the Courts refused to intervene in relation to such decisions but decided that the matter would not be one in which either it was appropriate or in which the Court was empowered to carry out the review.
In my judgment that is not of a lot of help when considering the application of the Judicial Review Act to the decisions to which I have referred.

I can see no reason why the terms of the Act which appear to cover the case should not be applied to the present case.  There is, of course, a vast amount of historical material dealing with prerogative powers but I do not think it would be a productive use of the Court's time to reserve my decision on this preliminary point to consider it all at length.

I doubt that any of it would persuade me to a different view, and I think the matter is best considered by proceeding to determine the merits of the application.  For that reason, I refuse the Attorney's application to dismiss the originating application summarily.

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