Sica v Crime and Corruption Commission

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SUPREME COURT OF QUEENSLAND

CITATION:

Sica v Crime and Corruption Commission [2025] QSC 118

PARTIES:

MASSIMO SICA

(applicant)

v
CRIME AND CORRUPTION COMMISSION

(respondent)

FILE NO:

BS 13208 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

28 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2025

JUDGE:

Davis J

ORDERS:

1. The applicant’s application for orders under s 49 of the Judicial Review Act 1991 is dismissed.

2. The applicant pay the respondent’s costs of the proceedings including the applicant’s application for orders under s 49 of the JudicialReview Act 1991 on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the applicant made an application to review the decision of the Crime and Corruption Commission to not investigate a complaint about police conduct – where the applicant withdrew the application by consent save for the question of costs – where the applicant brought an application under s 49 of the Judicial Review Act 1991 for an order that the parties each bear their own costs of the applications – where the Crime and Corruption Commission oppose the second application and seek that the applicant pay its costs of the applications – where the applicant is impecunious and submits that the original application was in the public interest – whether the parties should bear their own costs

Crime and Corruption Act 2001 (Qld), s 15, s 46, s 49
Criminal Code Act 1899 (Qld), s 1, s 672A, s 671AC

Judicial Review Act 1991 (Qld), s 4, s 20, s 48, s 49

Alliance to Save Hinchinbrook Inc v Cook[2005] QSC 355, cited
Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, followed
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, cited
Boe v Criminal Justice Commission (1993) 1 QAR 167; [1993] QSC 186, cited
Burragubba v Minister for Natural Resources and Mines (No 2)[2017] QSC 265, followed
Foster v Shaddock & Ors[2016] QCA 163, followed
Goodchild v Legal Services Commissioner [2018] 1 Qd R 454; [2017] QSC 117, cited
Gould v R [2023] NSWCCA 103, cited
Grierson v R (1938) 60 CLR 431; [1938] HCA 45, cited
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed
Hastwell v Legal Services Commissioner [2020] NSWSC 1008, cited
Holzinger v Attorney-General (2020) 5 QR 314; [2020] QCA 165, cited
Leadpoint Pty Ltd v Legal Services Commissioner[2015] QSC 254, cited
Lonergan v Stilgoe & Ors (No 2)[2020] QSC 146, cited
Meizer v Chief Executive, Dept of Corrective Services & Anor[2005] QSC 351, cited
Murphy v Legal Services Commissioner[2016] QSC 174, cited
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50, cited
Oshlack v Richmond River Council (1998)…

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Details
Case
[2025] QSC 118
Decision Date

CaseChat Overview and Summary

In the matter of Sica v Crime and Corruption Commission, the primary issue was the determination of costs between the parties, following the withdrawal of an application for judicial review by Mr Sica. The applicant, Mr Sica, had previously sought judicial review of the Commission's decision not to investigate his complaint about police conduct related to his murder conviction. After withdrawing the application, the remaining question was the allocation of costs between the parties. Mr Sica applied under section 49 of the Judicial Review Act 1991 for an order that both parties bear their own costs, while the Commission opposed this and sought to be awarded its costs.

The court considered the nature of Mr Sica's application, which was ultimately abandoned in favour of an alternative relief under the 2024 amendments to the Criminal Code. The court also noted that Mr Sica was impecunious. The relevant statutory provision, section 49(2)(b) of the Judicial Review Act, allows for a deviation from the usual rule that the losing party pays costs if the court considers it appropriate due to public interest. The court examined the purpose of this provision, finding that challenges to executive decisions often raise broader issues beyond the parties involved. This was illustrated by various cases where public interest considerations led to different cost outcomes.

In light of the above, the court dismissed Mr Sica's application for an order under section 49 of the Judicial Review Act 1991. It concluded that the circumstances did not warrant a deviation from the usual rule and ordered Mr Sica to pay the Commission's costs of the proceedings, including the application for orders under section 49 of the Judicial Review Act 1991, on the standard basis.

Orders

Orders of the court

1. The applicant’s application for orders under s 49 of the Judicial Review Act 1991 is dismissed.

2. The applicant pay the respondent’s costs of the proceedings including the applicant’s application for orders under s 49 of the Judicial Review Act 1991 on the standard basis.

Background

Background to the litigation

The only remaining question is that of costs. The Commission applies for its costs. Mr Sica resists that order and seeks relief pursuant to s 49 of the Judicial Review Act 1991 (Qld).Background In April 2003, three siblings aged between 12 and 24 were found deceased in their home at Bridgeman Downs.[1] On 3 July 2012, Mr Sica was convicted of their murder after a lengthy trial. He was sentenced to life imprisonment. He unsuccessfully appealed those convictions[2] and has always maintained his innocence.[1]The circumstances are described in R v Sica [2013] QCA 247.[2]R v Sica [2013] QCA 247. Until amendments to the Code came into force on 1 September 2024,[3] second or subsequent appeals were not available,[4] although there were exceptions and qualifications to that rule, as explained by the New South Wales Court of Criminal Appeal in Gould v R.[5] Generally though, a convicted person’s only remedy once their appeal was dismissed was to seek a favourable exercise of the prerogative power of pardon, which is expressly preserved by s 672A of the Code. That requires a convicted person to petition the Governor of Queensland. In practice, the Governor relies on the advice of the Attorney-General in exercising the prerogative power.[3]Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2024.[4]Grierson v R (1938) 60 CLR 431; R v Upson [2013] QCA 76; and R v Nudd [2007] QCA 40.[5]Gould v R [2023] NSWCCA 103. Section 672A provides a mechanism whereby the Attorney-General or the Director of Public Prosecutions[6] may refer a petition for pardon to the Court of Appeal.[7] The Court of Appeal considers the matter as if it was an appeal against conviction.[8] A decision not to refer a petition for pardon to the Court of Appeal is not a “decision of an administrative character made under an enactment”,[9] and is not a judicially reviewable decision.[10][6]See definition of “Crown Law Officer”: Code, s 1.[7]R v Stafford [2009] QCA 407 is an example of a re-trial being ordered upon referral of a pardon.[8]Section 672A(a).[9]Judicial Review Act 1991, s 4; and see generally Griffith University v Tang (2005) 221 CLR 99.[10]Holzinger v Attorney-General (2020) 5 QR 314. The September 2024 amendments to the Code[11] introduced a regime whereby a convicted person who had failed on appeal can mount a second or subsequent appeal if they can identify “fresh and compelling evidence or new and compelling evidence”.[12] [11]Which created Division 3 of Chapter 67.[12]Code, s 671AC; and as to the distinction between “new” and “fresh” evidence, see R v Katsidis ex parte Attorney-General (Queensland) [2005] QCA 229. In late 2018, Mr Sica retained a solicitor, Mr Johnson, to assist him in seeking a pardon, which at that stage was his only avenue to challenge his convictions. On 28 March 2023, Mr Sica made an oral complaint to the Commission, and that complaint was later supplemented by the provision to the Commission of correspondence and supporting materials. The essence of Mr Sica’s complaint was that police officers investigating the murders planted evidence, investigated selectively rather than exhaustively, and were in possession of exculpatory evidence which they did not disclose. It was also alleged that the prosecutor at trial did not call relevant exculpatory evidence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Commission submitted that its decision not to take action is clearly not judicially reviewable and the review application was ultimately abandoned in favour of an alternative avenue for relief under the 2024 amendments to the Code.Consideration It is accepted that Mr Sica is impecunious and that is a consideration in favour of making an order that both parties bear their own costs. Section 49 has been present in the Judicial Review Act since its enactment. There are no illuminating comments in the Explanatory Notes to the Judicial Review Bill 1991 which shed light on the concept of “public interest” in s 49(2)(b). However, the purpose of s 49(2)(b) is, in my view, clear. Often challenges to decisions made by the executive raise issues beyond those between the parties to the legislation. Examples can be seen in some of the cases relevant to standing. In Boe v Criminal Justice Commission,[30] a solicitor challenged the decision of the Commission[31] to refuse to investigate the level of funding for the Legal Aid Office. While the solicitor himself would benefit from increased availability of legal aid, broader questions of the interests of criminal justice were explored.[30](1993) 1 QAR 167; decided before Griffith University v Tang (2005) 221 CLR 99.[31]Then called the Criminal Justice Commission (CJC). In Australian Conservation Foundation Inc v Commonwealth,[32] what was sought (unsuccessfully) to be raised were issues concerning the environmental impact of a development upon a region in Central Queensland. [32](1980) 146 CLR 493. In Onus v Alcoa of Australia Ltd,[33] various issues were ventilated concerning Aboriginal rights and claims to tribal relics.[33](1981) 149 CLR 27. Public interest issues are not restricted to those broad, publicly important subject matters. Meizer v Chief Executive, Department of Corrective Services[34] is a case closer factually to the present. There, the applicant was a prisoner who had the benefit of being allowed to work on a particular project. He was suspended from the program and sought to judicially review that decision. [34][2005] QSC 351. The application was summarily dismissed, pursuant to s 48 of the Judicial Review Act, on the basis that the decision to suspend the program was not a decision “made under an enactment”. Douglas J applied the then recent decision of the High Court in Griffith University v Tang[35] and held that as there was no provision in the Corrective Services Act 2000[36] authorising the decision, it was not “one made under an enactment”.[35](2005) 221 CLR 99.[36]Predecessor to the Corrective Services Act 2006. On the question of costs, his Honour decided:“These applications were treated as being of some general importance, likely to affect many applications that might be made by prisoners. The matter was adjourned to enable the applicant to be represented properly. The applicant is a long-term prisoner with extremely limited financial resources. This appears to be one of the first occasions that this Court has been requested to consider the effect of the decision in Griffith University v Tang on the ability of prisoners to seek judicial review of decisions of the Department of Corrective Services. It seems appropriate to me, therefore, to order, pursuant to s 49 of the Judicial Review Act, that the respondent indemnify the applicant in relation to his costs properly incurred in the review application in respect of the respondent’s application pursuant to s 48 of the Judicial Review Act.”[37][37]Meizer v Chief Executive, Dept of Corrective Services & Anor [2005] QSC 351 at [14].