Perrier, Murray James v Kerr, Duncan James in his Capacity as Minster for Justice for the Commonwealth of Australia
[1997] FCA 814
•19 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 865 of 1995 ) GENERAL DIVISION )
BETWEEN: MURRAY JAMES PERRIER
ApplicantAND: DUNCAN JAMES KERR
IN HIS CAPACITY AS MINISTER FOR
JUSTICE FOR THE COMMONWEALTH
OF AUSTRALIA
Respondent
JUDGE: RYAN J PLACE: MELBOURNE DATE: 19 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 865 of 1995 ) GENERAL DIVISION )
BETWEEN: MURRAY JAMES PERRIER
ApplicantAND: DUNCAN JAMES KERR
IN HIS CAPACITY AS MINISTER FOR
JUSTICE FOR THE COMMONWEALTH
OF AUSTRALIA
Respondent
JUDGE: RYAN J PLACE: MELBOURNE DATE: 19 AUGUST 1997
REASONS FOR JUDGMENT
This is an application for an order of review of a decision of the respondent in his capacity as Minister for Justice of the Commonwealth. The applicant had been convicted in the County Court at Melbourne on 8 September 1989 on one count of being knowingly concerned in the importation of 1.6 kg of heroin, contrary to s 233B(1)(d) of the Customs Act 1901, and was sentenced to life imprisonment with a non-parole period of 22 years. At the trial, the applicant was represented by Mr Shane Collins of Counsel with Mr Frank Gucciardo as his junior. During the trial an incident occurred in which Mr Collins, in the course of cross-examining a Crown witness, read from a note (“the note”) which attested to the applicant’s good character. The trial judge, after commenting on this unusual action by the applicant’s Counsel, went on to allow an application by the Crown to lead evidence of the applicant’s prior overseas drug-related convictions.
The applicant sought leave to appeal to the Court of Criminal Appeal in Victoria. Different Counsel were engaged for the purpose of that application but no affidavits were filed in relation to the instructions which Mr Collins had received at the trial or explaining why the applicant’s character had been put in issue. The Victorian Court of Criminal Appeal, although it remarked on the unusual action taken by the applicant’s senior Counsel, on 11 May 1990 dismissed the application for leave to appeal. The applicant then sought special leave to appeal to the High Court. At the hearing of that application Mr Merkel Q.C., as he then was, sought to adduce additional evidence in the form of an affidavit sworn 27 August 1991 by Mr Collins in which he deposed that he had not received instructions to put his client’s character in issue. That affidavit was read by the members of the High Court but was not received as additional evidence. The application for special leave was dismissed.
Following the dismissal of the application to the High Court, a petition for mercy was lodged on behalf of the applicant on 1 June 1993. That petition sought a pardon, or, in the alternative, reference of the applicant’s case to the Court of Criminal Appeal pursuant to s 584 of the Crimes Act 1958 (Vic) (“the Crimes Act”). In support of the petition for mercy the applicant made a statutory declaration to the effect that he had no knowledge of the note before Mr Collins began to read from it in cross-examination. Junior Counsel at the trial, Mr Gucciardo, swore an affidavit, also in support of the petition for mercy, in which he deposed that he too had no prior knowledge of the existence of the note, and confirming that Counsel had been instructed not to put the applicant’s character in issue. On 15 December 1993 the petition was refused by the respondent. A second application was, on or about 27 March 1995, also refused by the respondent. The applicant now seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 (“the AD (JR) Act”) in respect of that second decision.
The submissions of both parties in this matter raise two questions: (a) can the refusal of the respondent to refer the applicant’s case to the Victorian Court of Criminal Appeal constitute a reviewable decision; and (b) if (a) is answered in the affirmative, to what extent was the decision an improper exercise of the power conferred by s 584(a) of the Crimes Act?
(a)Did the refusal of the respondent to refer the applicant’s case to the Victorian Court of Criminal Appeal constitute a reviewable decision?
Counsel for the applicant contends that the refusal by the respondent to refer the applicant’s case to the Victorian Court of Criminal Appeal constitutes “a decision made under an enactment” for the purposes of the AD (JR) Act. It has been submitted that the relevant “enactment” is s 584(a) of the Crimes Act as applied by s 68(2) of the Judiciary Act 1903 (“the Judiciary Act”). Section 584 of the Crimes Act provides as follows:
Nothing in this Part shall effect the prerogative of mercy, but the Attorney General on the consideration of any petition for the exercise of Her Majesty’s mercy, having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either -
(a)refer the whole case to the Full Court and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or
(b)if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to such judges for their opinion thereon, and such judges or any three of them shall consider the point so referred and furnish the Attorney-General with their opinion thereon accordingly.
Section 68(2) of the Judiciary Act provides:
The several Courts of a State or Territory exercising jurisdiction with respect to:
(a)the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
The application for an order of review in this matter refers to s 584 of the Crimes Act. Although Counsel for the applicant did not directly refer in terms to s 584(a) it seems to be understood by Counsel, and accepted by Counsel for the respondents, that it is s 584(a) rather than 584(b) of the Crimes Act, to which attention has to be given for present purposes. This clarification is of significance in that s 584(b) contemplates a reference for the purpose of obtaining an opinion which does not bind the Attorney-General or impinge on any legal right of a person who has been acquitted. Consequently an opinion furnished pursuant to (b) is not a “decision” which is subject to appeal: Thomas v The Queen [1980] AC 125; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410.
Although this point was not extensively argued by Counsel for either party, it is necessary at the outset to differentiate between an application to the Victorian Governor-in-Council, invoking the prerogative power in relation to a petition for mercy, and the alternative statutory procedure established by s 584(a) of the Crimes Act, which confers on the Victorian Attorney-General a statutory discretion upon the presentation of a petition for mercy, to refer such a petition to the Victorian Full Court. Direct exercise of the prerogative power is clearly not justiciable under the AD (JR) Act since it cannot occur under an enactment. Whether the exercise of the prerogative should be reviewable at common law was resolved in the negative after a fine balance of competing policy considerations in Burt v Governor-General [1992] 3 NZLR 672. (See also Reg v Home Secretary 1 QB 349 at 363 where it was concluded by the Divisional Court that “some aspects of the exercise of the Royal Prerogative are amenable to the judicial process”.)
It was the submission of Counsel for the applicant, and not disputed by Counsel for the respondent, that the effect of s 68(2) of the Judiciary Act is to vest in the Commonwealth Attorney-General the power referred to in s 584(a) of the Crimes Act. Counsel relied upon the decision in Peel v The Queen (1971) 125 CLR 447 where a majority of the High Court, departing from the reasoning in Williams v The King (No 2) 50 CLR 551, held that s 68(2) of the Judiciary Act operated upon s 5D of the Criminal Appeal Act 1912 (NSW) so as to enable the Commonwealth Attorney-General to appeal to the Court of Criminal Appeal against a sentence imposed by the Supreme Court or a court of quarter sessions.
I agree with Counsel for the applicant that s 584(a) of the Crimes Act, when read in conjunction with s 68(2) of the Judiciary Act, operates to vest the corresponding equivalent discretionary power in the Commonwealth Attorney-General. For examples of subsequent application of the reasoning of the majority in Peel v The Queen see Rohde v Director of Public Prosecutions (1986) 161 CLR 119 and Lamb v Moss (1983) 49 ALR 533 at 560.
Counsel for the applicant also submitted that the refusal by the respondent was a decision for the purposes of judicial review. Counsel for both parties have referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where at 337 Mason J observed:
A reviewable decision is one for which provision is made under a statute. That will generally but not always entail a decision which is final or operative or determinative, at least in a practical sense, of the issue of fact falling for consideration...
Another essential quality of a reviewable decision is that it be a substantive determination.
And per Toohey and Gaudron JJ at 375:
Generally, the exercise of or the refusal to exercise a substantive power will constitute a decision which, in the terms used in Lamb v Moss, has an “ultimate and operative effect”. However, this will not always be so.
Counsel for the applicant, in written contentions, made two alternative submissions. The first was that a decision to refer the applicant’s case to the Victorian Court of Appeal may not of itself have been “final”, but that a refusal, given its determinative effect, was, indeed, so. Secondly, it was submitted that although, upon referral to a Full Court of the Supreme Court, the applicant’s case might have been decided in a number of ways, that did not mean that the decision by the respondent not to refer the matter was not of itself reviewable. Counsel referred to Lamb v Moss (supra). In that case, a Full Court of this Court, after reviewing the authorities on what constituted a decision for the purposes of the AD (JR) Act, held that a refusal by a magistrate to allow further cross-examination of Crown witnesses was conduct engaged in for the purposes of making a decision, and was thus reviewable. The Full Court noted at 555-6:
The attribution of a wide meaning to “decision” in the Act to include any decision of an administrative character seems to us to accord with the broad list of activities which are included in the non-exhaustive statutory definitions of the word in s.3(2) which are further expanded in sub-s 3(3). The very presence of the latter sub-section is, in our opinion, incompatible with the notion that only ultimate and operative determinations are reviewable...
In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect. Such a conclusion is, in our opinion, in accordance with the plain legislative intention revealed by the words of the Act.
Counsel for the respondent, submitted that the decision of the respondent not to refer the matter to the Victorian Court of Criminal Appeal was not sufficiently operative, final or substantive to qualify as a reviewable decision under the AD (JR) Act. However Counsel did not, in his own words, “seek to press this contention vigorously”. Counsel accepted that observations of the Full Court in Lamb v Moss (supra) and, more recently, the decision in The Northern Territory of Australia v Lane (1995) 59 FCR 332, are authority for the proposition that a decision in the course of proceedings, not of itself final, could still amount to a decision for the purposes of the AD(JR) Act. In Northern Territory v Lane the issue was whether or not the acceptance by a Registrar of the National Native Title Tribunal of an application constituted a decision under an enactment for the purposes of the AD (JR) Act, O’Loughlin J, after quoting from Australian Broadcasting Tribunal v Bond, went on to conclude at 348:
In my opinion, the act of the Registrar in these proceedings, in accepting the application, must properly be classified as a “decision under an enactment” within the meaning of the ADJR Act because it was a separate decision for which specific provision is made in the Native Title Act...In other words the act of acceptance is an operative decision in a practical sense as it gives rise to practical consequences. The most important of those consequences is the progression of the application into the Tribunal where, perhaps, a determination may be made or, at least, a mediation will commence. Furthermore, a decision by the Registrar that she will accept an application has the necessary quality of finality for that action and thereby concludes the Registrar’s administrative duties for the time being.
By parity of reasoning, I am led to conclude that a decision by the respondent to refer a matter to the Court of Appeal pursuant to s 584(a) of the Crimes Act, while not being final in the sense of determining the outcome of the proceedings, is nevertheless a reviewable decision for the purposes of the AD (JR) Act. Such a decision is, in the words of O’Loughlin J, an “operative decision” with “practical consequences”. It follows, therefore, I consider, consistently with the view expressed in Lamb v Moss (supra), that a refusal to refer can also be so regarded. I therefore accept that the decision by the respondent not to refer the applicant’s case under s 584(a) of the Crimes Act was a decision for the purposes of the AD (JR) Act.
I also uphold the submission of Counsel for the applicant that, notwithstanding that the application for an order for review is out of time, this is a case where an extension of time is permissible. The affidavit material deposes that between January 1994 and September 1995, when legal aid was granted to the applicant, many legal advisers assisted the applicant, all of them on a pro bono basis. Furthermore the applicant in this proceeding is currently serving a sentence of life imprisonment. It follows, in my view, that an extension of time should be granted to the applicant to enable his substantive case to be properly ventilated before the Court.
For these reasons, it is necessary to proceed to answer the second of the two questions posed above.
(b)To what extent was the decision of the respondent a proper exercise of the power conferred by s 584(a) of the Crimes Act?
The applicant lodged a petition for mercy on 1 June 1993 seeking a pardon, or, in the alternative, reference of the applicant’s case to the Court of Criminal Appeal in Victoria pursuant to s 584(a) of the Crimes Act. In support of that application the applicant attached a statutory declaration to the effect that he had no knowledge of the letter before Mr Collins began to read it, and that he had given express instructions that his character was not to be put in issue. Also attached to the application was an affidavit sworn by Mr Gucciardo, the junior Counsel at the applicant’s trial, in which Mr Gucciardo deposed that he had no prior knowledge of the letter, and confirmed that Counsel had been instructed not to put their client’s character in issue.
After the decision of the respondent to refuse the applicant’s request for a referral under s 584(a), the following written reasons were obtained from the respondent in January 1994:
I refer to your fax dated 18 January 1994 concerning your client Mr Perrier. You have requested detailed reasons for the Minister’s decisions.
On 15 December 1993 the Minister considered Mr Perrier’s case. The Minister declined to recommend to His Excellency the Governor-General that he grant your client a pardon. He also declined to refer your client’s case for hearing and determination by the Full Court of the Victorian Court of Appeal, under subsection 584(a) of the Victorian Crimes Act 1958.
At the time the Minister considered your client’s case he had before him the following material relating your client:-
Details of sentence and facts of the offence
sentencing remarks
Court of Appeal decision
Summary of evidence filed by the respondent in the Victorian Full Court
DPP report
Your application, including annexures
A pardon is rarely granted and only where there is fresh evidence which casts serious doubts upon the correctness of the conviction and all legal avenues for having it set aside have been exhausted. The affidavit and other documents merely confirm what both the trial Judge and the Court of Appeal were aware may have happened with regard to the reading of the letter. The matter was fully ventilated at the trial and the decision of the trial Judge was upheld on appeal. The High Court specifically considered the argument that Senior Counsel had made an error of judgement and Senior Counsel’s affidavit to that effect was before the High Court.
The Minister considered that the matter has been fully and meaningfully considered by the Courts and no new evidence has been submitted which cast doubt upon the correctness of the conviction.
In relation to the referral under paragraph 584(a) of the Crimes Act 1958 (Vic) the Minister, for the reasons set out in the above paragraph he (sic) did not consider that there was a real possibility that a miscarriage of justice had occurred or that the grounds of the Petition indicate that a miscarriage of justice may have occurred sufficient to justify hearing of the issues by the Court.
On 17 October 1994, on behalf of the applicant, a request on behalf of the applicant for reconsideration of the petition for mercy was lodged with the respondent. On 27 March 1995, the Minister refused the applicant’s request. In a letter dated 3 April 1995 the following appears:
I refer to your application on behalf of Mr Perrier requesting a pardon dated 17 October 1994.
On 27 March 1994 [sc. 1995] the Minister of Justice considered Mr Perrier’s case and decided not to recommend the Governor-General that you be granted a pardon. He also decided not to refer the case to the Victorian Court of Criminal Appeal under section 584 of the Crimes Act 1958 (Vic) as if it were an appeal.
In considering Mr Perrier’s request, the Minister took into account both the Victorian Court of Criminal Appeal’s and the High Court’s consideration of Mr Collins’ conduct. He also considered the implications for the case of the decision in Dietrich v R (1992) 177 CLR 292.
Counsel for the applicant has submitted that the decision of the respondent to refuse to refer the applicant’s case to the Full Court of the Supreme Court pursuant to s 584(a) of the Crimes Act, as applied by s 68(2) of the Judiciary Act, was an improper exercise of the statutory power. It has not been contended that the respondent was not in possession of all material relevant to the application for a petition for mercy. Rather, it was submitted that the decision of the respondent had been made without taking into account considerations relevant to the exercise of the power. The first of those considerations pointed to by Counsel for the applicant was that the subsequent affidavits of Mr Collins and Mr Gucciardo and the statutory declaration of the applicant had not been before the appellate courts when they refused relief to the applicant. Consequently, so it was urged, the appellate courts had proceeded to deal with the matter on the erroneous assumption that the actions of Mr Collins had been agreed upon between him and the applicant. Secondly, it was submitted that the respondent did not take account of the fact that if the applicant were to approach the Court of Appeal directly, the Court would be functus officio and could not consider further his application for leave to appeal against his conviction. It was next argued that the respondent had taken into account the irrelevant consideration that the appellate courts held that the trial judge had conducted the trial properly. Rather, so the argument went, the relevant consideration was whether the appellate courts would have reached the same result had they been in possession of the subsequent affidavits by Mr Collins and Mr Gucciardo and the statutory declaration of the applicant. It was further submitted, in written contentions, that there was no evidence upon which the respondent could have reached the conclusion which he did.
Counsel for the respondent contended, on the other hand, that the respondent had considered all relevant considerations in refusing the application. On the central issue of whether the respondent had taken into account the fact that the trial judge and the appellate courts did not have available to them affidavit material that would have attested to the lack of agreement between the applicant and his Counsel, Counsel for the respondent submitted that although the Court of Criminal Appeal did not have before it the subsequent affidavit material, the transcript reveals that Court to have been fully apprised of the nature of Mr Collins’ error and of the circumstances bearing on whether it was of sufficient gravity to raise the possibility that a miscarriage of justice had occurred.
In a reference under s 584(a) of the Crimes Act, the Court of Criminal Appeal may allow the appeal if it thinks that there has been a miscarriage of justice; (see Re Ratten [1974] VR 201 at 213-214; Re Knowles [1984] VR 751 at 760-761). It follows, therefore, that the respondent was required to inquire, when called on to exercise the power to refer a matter under s 584(a), whether there was a reasonable possibility of the Court of Criminal Appeal’s concluding that there had been a miscarriage of justice. In this respect, it is for the respondent to consider not only the conduct of the trial but also the circumstances in which the appellate courts considered the conduct of the trial. (For a discussion of the circumstances to be evaluated by an appellate court in considering the impact of what is claimed to be fresh evidence, see Ratten v The Queen (1974) 131 CLR 510 per Barwick CJ at 517.)
It was not submitted by Counsel for either party that no account had been taken of the conduct of Mr Collins by either the trial judge in admitting prejudicial character evidence or by the appellate courts in dismissing the appeal. Rather, it has been suggested by Counsel for the applicant that the appellate courts misapprehended Mr Collins’ motives and the intentions of his client. It was submitted in particular that the Court of Criminal Appeal assumed the note to have been known by both the applicant and Mr Collins to have been framed as a character testimonial. Counsel pointed to the judgment of Brooking J in the instant case, reported sub nom R v Perrier (No 1) [1991] 1 VR 697 where, at 709, his Honour observed:
It is reasonable to infer that the Lewis testimonial was procured by the applicant for the purposes of his defence to the charge.
Counsel for the respondent, however, argued that the case for the applicant was put too high if it depends upon acceptance by the Court of Criminal Appeal that the applicant had consented to his character being put in issue. Counsel referred to the judgment of Brooking J, again at 709, where it was noted:
It is possible that counsel was influenced by a view that the co-accused would probably prove his client’s convictions. He told the learned judge after the incident that counsel for the co-accused intended to do so. He may have made a serious error of judgment in reading the letter. It is possible that he was yielding to instructions.
I accept that the trial judge, the Court of Criminal Appeal and the High Court expressed some uncertainty as to whether the applicant had acquiesced in what Mr Collins did. I also accept that, as the comments of Brooking J seem to indicate, this uncertainty was not of itself conclusive that a potential miscarriage of justice had occurred. Gleeson CJ in Birks (1990) 48 A Crim R 385 examined what actions by counsel can be said to have given rise to a miscarriage of justice. After reviewing the authorities, his Honour observed at 392:
1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
I accept that the absence of agreement by the applicant to the course of conduct adopted by Mr Collins was relevant as going to the question of discretion. I do not accept, however, that it was crucial to the occurrence of a miscarriage of justice. Counsel exercises a professional discretion in deciding how best to present an accused’s defence. Decisions made in the exercise of that discretion are at times made with the consent of the accused and other times without reference to the accused. In the course of proceedings Counsel may make errors of judgment in the presentation of a case. In my view, for a matter to amount to what Gleeson CJ termed “flagrant incompetence” something more than an error of judgment or a lapse of appreciation of the consequences of a particular course of the kind that occurred here is required.
A clear distinction can be drawn between a situation where, as in this case, Counsel for the defence puts his client’s character in issue with prejudicial consequences and one where there is a failure, at the suggestion of the trial judge, to request the discharge of a jury in circumstances highly prejudicial to the accused (see R v Sarek [1982] VR 971) or where defence Counsel withholds exculpatory evidence from the jury (Re Knowles (supra)). As Brooking J observed in Re Perrier (No 1) (supra) at 710:
Re Knowles[1984] VR 751 was a very different case. There the court was satisfied that the case was not one of error of judgment in deciding whether to lead certain evidence but of fundamental error as to the admissibility of the evidence.
I accept, therefore, that Mr Collins’ lapse, though without the applicant’s consent, cannot be regarded as having been of such a magnitude as to raise a possibility of a miscarriage of justice in the minds of the members of the Court of Criminal Appeal. I find no evidence to suggest that the respondent did not, after considering these matters, reach a similar view. It follows, therefore, that it cannot be said that the respondent did not consider the effect that the subsequent affidavit material would have had upon the proceedings either at trial or in the course of the appellate proceedings.
It was submitted in written contentions on behalf of the applicant which were not pressed at the hearing, that if he were to make a direct appeal to the Court of Criminal Appeal, that Court would be unable to deal with his application as it would be functus officio. Although this was a matter which the respondent should have taken into account in the exercise of his discretion as to whether or not to grant the application, I find no evidence that the respondent did not so consider that matter. Furthermore, although the applicant also submitted in written contentions that there was no evidence upon which the respondent could have made the decision he did, this argument was not pressed by Counsel at the hearing. Having regard to the extent of the material before the respondent, his reasons, and the wide discretion conferred upon him by s 584(a) of the Crimes Act, I do not consider that this contention has been made out.
I therefore conclude that the grounds for review submitted by the applicant have not been made out. Moreover, I am unable to conclude that the decision of the respondent was one which no reasonable Minister could have made. Accordingly, the application must be dismissed with costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan
Associate:
Dated: 19 August 1997
Counsel for the Applicant: Mr B E Walters Solicitor for the Applicant: Galbally Fraser & Rolfe Counsel for the Respondent: Mr P J Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 August 1996 Date of Judgment: 19 August 1997
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