Zhong v Attorney-General of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0061 & S EAPCI 2023 0123

ZHANYU ZHONG	Applicant
v
ATTORNEY-GENERAL OF VICTORIA	Respondent

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JUDGES:	NIALL, BOYCE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2024
DATE OF JUDGMENT:	29 January 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 1
JUDGMENT APPEALED FROM:	Zhong v Attorney-General (Vic) [2020] VSC 302 (Justice Croucher) & Zhong v Attorney-General (Vic) [2023] VSC 634 (Justice Ginnane)

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ADMINISTRATIVE LAW – Judicial review – Refusal of Attorney-General to refer applicant’s case to Court of Appeal pursuant to s 327(1)(a) of Criminal Procedure Act 2009 – Whether jurisdictional error committed – Legal unreasonableness – Whether Attorney-General misconstrued statutory function – Minister of Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister of Immigration and Citizenship v Li (2013) 249 CLR 333, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464, applied – Mallard v The Queen (2005) 224 CLR 125, von Einem v Griffin (1998) 72 SASR 110, Martens v Commonwealth (2009) 174 FCR 114, Ogawa v Attorney-General [No 2] (2019) 373 ALR 689, Massie v The Queen [1999] 1 VR 542, Holzinger v Attorney-General (Qld) (2020) 5 QR 314, Attorney-General (Cth) v Ogawa (2020) 281 FCR 1, considered – Criminal Procedure Act 2009, s 327(1)(a), Crimes Act 1958, s 321G.

PRACTICE AND PROCEDURE – Appeal – Petition for mercy – Refusal of Attorney-General to refer applicant’s case to Court of Appeal – Refusal by judge to grant judicial review – Decision by judge overtaken by fresh petition – No practical utility in considering appeal – Question moot – Leave to appeal refused – Re Olrey Pty Ltd [2016] VSCA 8, followed.

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Counsel
Applicants:		In Person
Respondent:		Mr L Brown SC with Ms C Marcs
Solicitors
Applicants:	In Person
Respondent:	Victorian Government Solicitor

NIALL JA
BOYCE JA
KENNY JA:

Introduction

In October 2001, the applicant was convicted by a jury and sentenced for having committed the offence of inciting the murder of his then de facto wife. The applicant unsuccessfully appealed his conviction to the Court of Appeal.[1] The applicant was then unsuccessful in obtaining special leave from the High Court to appeal against the decision of the Court of Appeal.[2] After the applicant had exhausted his rights of appeal against conviction, he petitioned the respondent, on three separate occasions, seeking that his case be referred to the Court of Appeal. The respondent declined to refer the applicant’s case to the Court of Appeal, on all three occasions. The applicant sought judicial review of the respondent’s denial of his second and third petitions. The applicant failed in both his applications for judicial review.[3] There are now two proceedings before this Court. One is an application for leave to appeal against the first failed application for judicial review; the second is an application for leave to appeal against the second failed application for judicial review. For reasons that will become apparent, it is necessary only to consider the application for leave to appeal against the second failure to obtain judicial review, that is to say, the application for judicial review that concerns the applicant’s third petition.
[1]R v Zhong (2003) 139 A Crim R 220; [2003] VSCA 56 (‘conviction appeal reasons’).
[2]Zhong v The Queen [2005] HCATrans 58 (‘special leave application’).
[3]Reasons for the first failure are found in the judgment of Croucher J: Zhong v A-G (Vic) [2020] VSC 302 (‘Croucher J’s reasons’). Reasons for the second failure are found in the judgment of Ginnane J: Zhong v A-G (Vic) [2023] VSC 634 (‘Ginnane J’s reasons’).
For the reasons that follow, we consider that leave to appeal against the second application for judicial review[4] should be refused.
[4]As expressed in Ginnane J’s reasons.

Background

Summary of material facts

The applicant met his former wife in China in the 1980s. They lived in Victoria in the 1990s. The couple had a child (a daughter), but the relationship between the applicant and his former wife deteriorated, and they ultimately separated. Proceedings were instituted in the Family Court concerning, inter alia, access by the applicant to his daughter. It seems that the applicant did not see his daughter for approximately one year. Difficulties concerning access continued despite the intervention of the Family Court. The applicant became disillusioned and depressed. The prosecution alleged that the applicant began to hatch plans to kill his wife. It was alleged that the applicant discussed such a plan with an acquaintance. The acquaintance subsequently informed police. In March 2000, the applicant was contacted by an undercover police operative — ‘Mark’. The applicant met with Mark on a number of occasions. The prosecution alleged that the applicant incited Mark to kill the applicant’s ex-wife for a price of $10,000.00. The evidence revealed that there were times when the applicant wavered in his resolve to have Mark kill his wife.[5] The applicant was arrested and ultimately convicted. He was sentenced to six years’ imprisonment with a non-parole period of three and a half years.

Procedural history

[5]The material facts are summarised in the conviction appeal reasons at 222–3 [6]–[14]. At one stage, after the price of $10,000.00 had been agreed upon, the applicant said to Mark that he wanted to ‘cancel the whole thing’. The following day, the applicant met with Mark and told him that he was really scared and that money was the main problem. Two weeks later, however, the applicant told Mark that he still wanted him to ‘do it’ and that he wanted it done ‘as soon as possible’ but that he did not have enough money. The applicant suggested to Mark that he take the wife’s keycard and withdraw money from her account. The applicant wanted it to look like the wife had been ‘robbed and raped’.

In 2003, the applicant sought leave to appeal against his conviction in the Court of Appeal. The applicant’s grounds of appeal included a ground in the following terms:
The conviction was unsafe and unsatisfactory in that a reasonable jury could not have excluded the reasonable possibility that the applicant never formed a concluded intention that the offence allegedly incited be committed.[6]
[6]Conviction appeal reasons, 223–4 [16].
On 15 May 2003, the Court of Appeal refused the applicant leave to appeal against his conviction.[7]
[7]Conviction appeal reasons, 221 [1] (Winneke P), 222 [5] (Phillips JA), 227 [34] (Buchanan JA).
In 2005, and after the applicant had been released on parole, the High Court refused the applicant special leave to appeal against the decision of the Court of Appeal.[8]
[8]Special leave application.
The applicant then, in 2010, filed a petition of mercy — his first — with the respondent. The applicant requested that his case be referred to the Court of Appeal pursuant to s 327(1)(a) of the Criminal Procedure Act 2009 (‘CPA’). In 2012, the applicant was advised that his petition had been denied.[9]
[9]Croucher J’s reasons, [4].
In 2018, the applicant filed a further petition for mercy — his second — with the respondent. This petition was refused — in effect — on two occasions; first, very soon after its filing, and a second time (upon reconsideration) in 2019 after the applicant had filed an originating motion in the Supreme Court seeking judicial review of this petition’s initial refusal.[10]
[10]Croucher J’s reasons, [6]–[7].
The applicant then sought judicial review in the Supreme Court of the ultimate refusal of the second petition. In May 2020, Croucher J dismissed the applicant’s application for judicial review.[11] The applicant sought leave to appeal to the Court of Appeal against this decision on 8 July 2020.
[11]Croucher J’s reasons, [461].
In August 2020, the applicant lodged a third petition for mercy with the respondent. Based upon the presumed success of this petition, the applicant offered to ‘settle’ his appeal against the decision of Croucher J.[12] Whilst the respondent was considering the third petition, the applicant — by originating motion — commenced proceedings in the Supreme Court. The applicant sought judicial review in respect of the respondent’s consideration of the third petition. The remedies sought included declarations and an order that the respondent refer the applicant’s third petition to the Court of Appeal.[13]
[12]Ginnane J’s reasons, [7].
[13]Ginnane J’s reasons, [10].
On 25 October 2022, the respondent denied the applicant’s third petition.[14] Upon request by the applicant, the respondent — on 2 November 2022 — provided reasons for this refusal.[15]
[14]Ginnane J’s reasons, [11].
[15]Ginnane J’s reasons, [12].
On having refused the applicant’s third petition, the respondent invited the applicant to discontinue the proceeding concerning the second petition that the applicant had commenced by way of originating motion in the Supreme Court.[16] The applicant responded to this invitation by proposing that the respondent refer the applicant’s third petition to the Court of Appeal on the bases that the applicant’s conviction could not be supported by prosecution evidence and that a substantial miscarriage of justice had been caused at the applicant’s trial.[17]
[16]Ginnane J’s reasons, [25].
[17]Ginnane J’s reasons, [26].
By this stage, the applicant had applied to bring a second, or subsequent appeal, against his conviction pursuant to s 326A of the CPA (‘the applicant’s second or subsequent appeal’). The basis for this appeal was said to be that there existed ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.[18]
[18]See Criminal Procedure Act 2009, s 326C(1) (‘CPA’).
Thus, in answer to the respondent’s invitation (referred to above), the applicant further proposed that his two Court of Appeal proceedings — the appeal against Croucher J’s decision and the applicant’s second or subsequent appeal — be consolidated into one appeal proceeding.[19] The applicant sought that the respondent agree to allow him to raise the substance of his third petition in his second or subsequent appeal in the event that the applicant discontinued the application for judicial review that had previously been made concerning the third petition.[20]
[19]Ginnane J’s reasons, [26].
[20]Ginnane J’s reasons, [26]. See paragraph 10 above.
On 28 November 2022, the Registry of the Court of Appeal declined to consolidate the applicant’s then two extant Court of Appeal proceedings; that is to say, the application for leave to appeal against the decision of Croucher J, and the applicant’s second or subsequent appeal.[21]
[21]Ginnane J’s reasons, [27].
On 2 March 2023, the Court of Appeal refused the applicant leave in respect of his second or subsequent appeal.[22]
[22]Zhong v The King [2023] VSCA 35 (‘the second or subsequent appeal reasons’).
On 23 March 2023, the applicant’s application for judicial review made in respect of his third petition came on for hearing before Ginnane J. On 1 November 2023, Ginnane J dismissed the applicant’s application for judicial review.[23] On 28 November 2023, the applicant applied for leave to appeal to the Court of Appeal against Ginnane J’s decision.
[23]Ginnane J’s reasons, [107].

Application for leave to appeal against Croucher J’s decision lacks utility

The above chronology of events reveals that, as a practical matter, Croucher J’s decision to dismiss the applicant’s application for judicial review of the respondent’s decision to refuse the applicant’s second petition has been overtaken by events connected with the applicant’s third petition. The respondent submitted, at the present hearing, that the leave sought by the applicant to appeal against Croucher J’s decision should be refused on the basis of lack of utility. This submission was drawn to the applicant’s attention at the oral hearing of this matter. In response, the applicant presented argument directed solely to his application for leave to appeal made in respect of Ginnane J’s decision.
In such circumstances, we would refuse the applicant leave to appeal against the decision of Croucher J. In view of the matters raised by the applicant’s application for leave to appeal against the decision of Ginnane J, consideration of any appeal against Croucher J’s decision is rendered inutile.[24]
[24]See, eg, Re Olrey Pty Ltd [2016] VSCA 8, [14], citing Shire of Yarra Ranges v Russell (2009) 25 VR 560; South Australia v Lampard–Trevorrow (2008) 260 LSJS 185, 187–8 [20]–[24] (White J).
The focus must therefore be placed upon the applicant’s third petition for mercy, the respondent’s refusal to refer the applicant’s case to the Court of Appeal on the strength of this petition, and the decision of Ginnane J denying the applicant prerogative relief in respect of this refusal. As will become evident, it will be necessary at various points to consider aspects of Croucher J’s reasons.

The applicant’s third petition for mercy

The applicant lodged his third petition for mercy on 3 August 2020. As related above, this petition accompanied an offer by the applicant to settle his appeal proceeding against Croucher J’s decision on the basis that the respondent agree to refer the applicant’s case to the Court of Appeal.
The letter containing the third petition claimed that Croucher J had concluded that a substantial miscarriage of justice had occurred at the applicant’s trial. It also alleged that Croucher J had found errors of law on the face of the record as well as jurisdictional error. The letter alleged — without particularisation — violations of ss 8, 24 and 25 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). The letter noted that Croucher J had refused the applicant’s contention of ‘Wednesbury Unreasonableness’ but asserted that:
This part of Croucher J reasons are the appealable jurisdictional errors of violating S32 of the Charter, and such issues I can invoke the HCA constitutional jurisdiction for providing me the remedy of the injustice [sic].
The letter then foretold that ‘[m]ore detailed reasons and evidence will be contained in materials for a fresh petition for you to consider my faithful offer’.
A document was attached to the above letter. This document was entitled: ‘Outlined loopholes of potential systematic corruption and other material of law and fact to file my fresh petition [sic]’. The contents of this document described the applicant’s concerns about Victoria’s system of criminal procedure. The document alleged judicial and police corruption that was said to have taken place during the applicant’s trial. In particular, it was alleged that corrupt police had withheld, and tampered with, audio-tape recordings that were of relevance in the applicant’s trial. It was also alleged that the trial judge, at the applicant’s trial, had behaved corruptly by misleading and misdirecting the jury. The document contained suggestions for legislative reform connected with the manner in which police make disclosure of evidence of audio-taped recordings. The applicant also raised questions of law reform. These concerned how a trial judge should direct a jury about the law of incitement. The letter and document were accompanied by various attachments; these included documents prepared for previous court hearings.
On 20 December 2020, the above materials were supplemented by written submissions drawn by counsel. These submissions were self-described as ‘further targeted submissions to support [the applicant’s] petition of mercy’. The written submissions contained essentially three reasons why the respondent ought refer the applicant’s case to the Court of Appeal. The submissions drew upon certain aspects of Croucher J’s reasons.
The first basis relied upon in the written submissions was to contend that the trial judge at the applicant’s trial had erred by failing correctly to direct the jury as to the law of incitement. In particular, it was argued that there had been a failure to direct the jury in accordance with the terms of s 321G(2)(b) of the Crimes Act 1958 (‘Crimes Act’).[25] It was argued[26] that the decision of Massie v The Queen (‘Massie’)[27] was wrongly decided, or at least factually distinguishable from the applicant’s case. This is important because Massie is a decision of the Victorian Court of Appeal which pre-dates the applicant’s trial and which contains reasoning that would render the terms of s 321G(2)(b) as inapplicable to the applicant’s trial.[28]
[25]Section 321G of the Crimes Act 1958 (‘Crimes Act’) provides as follows (emphasis added): ‘Incitement (1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by— (a) the person incited; (b) the inciter; or (c) both the inciter and the person incited— if the inciting is acted on in accordance with the inciter’s intention, the inciter is guilty of the indictable offence of incitement. (2) For a person to be guilty under sub-section (1) of incitement the person— (a) must intend that the offence the subject of the incitement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under sub-section (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.’ Section 2A(1) of the Crimes Act also provides that ‘incite’ includes command, request, propose, advise, encourage or authorise.
[26]In line with certain views expressed by Croucher J: see Croucher J’s reasons, [326]–[342].
[27][1999] 1 VR 542; [1998] VSCA 82 (‘Massie’).
[28]In Massie, and by reference to a report authored by the Criminal law Working Group on conspiracy, Brooking JA (with the agreement of Winneke P and Batt JA) observed that ‘para. (b) [of s 321G(2)] was not intended, by it at all events, to have any scope for operation in a case like the present [a case like Massie]. The idea was to deal with cases where criminal liability as regards the offence which someone was incited to commit depended merely upon the existence of certain circumstances, ignorance of them not affecting liability (R v Churchill [1967] 2 AC 224 is given as an example of such an offence in para. 11), and to prevent those who incited conduct in such a case from becoming liable as inciters unless they believed that the circumstances existed’: at 547, [16] (emphasis added).
The second argument made in counsels’ written document was that the verdict of the jury at the applicant’s trial was ‘unsafe’ on account of ‘uncertainty’. It was submitted that the jury at the applicant’s trial ought to have been, but was not, directed to be unanimous concerning any particular meeting that the applicant may have had with Mark over the period during which it was alleged that the applicant negotiated the killing of his former wife. Again, in this respect, the document made reference to the decision of Croucher J.[29] The written submissions referred to the fact that Croucher J’s views on this topic were necessarily qualified because his Honour ‘did not have access to the complete trial transcript’. The document indicated, however, that the trial transcript of the applicant’s trial was ‘attach[ed]’ for the respondent’s benefit.
[29]In particular, Croucher J’s reasons, [474]–[477].

The final argument made by counsel in support of referral was the existence of ‘new’ evidence that it was said ‘could impact on the verdict’. This evidence related to an alteration that the applicant had allegedly made to his family’s health insurance arrangements. The evidence related, additionally, to a loan of $5,000.00 that had been made by the applicant to a person known as Mr Hu. Both the change in insurance details and the loan were said to have taken place at or around the time of the alleged incitement. It was submitted that both these acts told against the applicant’s guilt. It was put that if the applicant had possessed an intention to incite his wife’s murder he would not have increased his family’s health insurance cover. It was put, also, that the applicant would not have loaned such a sum of money to a third party if the same sum could have been applied for the purposes of paying Mark. The evidence of the loan was said to suggest that the applicant did not intend that his former wife be killed.

The respondent’s refusal

The respondent, exercising her discretion under s 327 of the CPA, refused to refer the applicant’s case to the Court of Appeal. The respondent provided reasons. Those reasons commenced by making reference to material that the respondent had considered in making her determination. Such material included the Charter, as well as the following documentation:
1. All correspondence and enclosures received from [the applicant] since 4 August 2020, including:
a.Letter to the Attorney-General dated 3 August 2020 with one enclosure;
b.Letter to Alexandra McKinlay of the Victorian Government Solicitor’s Officer dated 3 August 2020 with nine enclosures; and
c.Email to the Attorney-General dated 28 April 2021 with three enclosures
2.Submissions from Counsel on behalf of [the applicant] dated 20 December 2020.
3.Judgment relating to the judicial review of a decision of the previous Attorney-General not to refer an earlier petition for mercy by [the applicant] under section 327 of the CPA — Zhong v Attorney-General [2020] VSC 302.
4.Judgments relating to previous appeals by [the applicant] against his conviction — The Queen v Zhan Yu Zhong [2003] VSCA 56 and Zhan Yu Zhong v The Queen [2005] HCA Trans 058.
5.Plea and sentencing remarks from [the applicant’s] trial — R v Zhong [2001] VSC 524.
6.Transcripts and depositions from [the applicant’s] trial.
Next, the respondent summarised the grounds relied upon, and the concerns raised by, the applicant in his third petition.
The respondent described the first matter raised by the applicant as the ‘Massie issue’. The respondent described the substance of this complaint made by the applicant in the following terms:
The trial judge misdirected the jury about the elements of s 321G of the Crimes Act 1958 (Crimes Act), meaning that the jury’s verdict might be unsafe or there was otherwise the possibility of a miscarriage of justice. This was because: (a) the trial judge wrongly considered he was bound by the Court of Appeal’s judgment in R v Massie [1999] 1 VR 542 (Massie) on the question of the construction of the provision; and (b) the Court of Appeal was incorrect in that construction.
The second ground, or concern, raised by the applicant was — according to the respondent — the issue of ‘[t]he timing of the intention’. The respondent expressed the essence of the applicant’s case, in this respect, as follows:
The trial judge failed to direct the jury as to the requirement for unanimity in their verdict as to when [the applicant] formed a concluded intention to have ‘Mark’ murder [the applicant’s ex-wife]. Given the number of meetings [the applicant] had with ‘Mark’ over a five-month period and the apparent vacillation in these conversations, the failure to direct the jury that they needed to be unanimous on the question of when he formed the intention to incite the murder means that there may have been uncertainty in the verdict.
The third issue noted by the respondent concerned ‘[n]ew evidence’. The respondent characterised this aspect of the applicant’s case in the following terms:
Two pieces of evidence were not before the jury in [the applicant’s] trial — the loan of $5000 to a Mr Hu and an increase in [the applicant’s] family health insurance cover. The loan evidence shows that [the applicant] was lying to Mark on 3 August 2000 about having insufficient funds for the deposit, and the health insurance evidence suggests he had the expectation that his wife would live beyond August 2000. If this evidence had been adduced at the time of trial, it would have materially impacted on the jury’s verdict.
The respondent characterised the final ground, or concern, raised by the applicant as one that related to ‘[c]orruption, bias, incompetence, and unfairness’. The respondent described the applicant’s case made in this respect as follows:
Many arguments are made by [the applicant] that police corruption, corruption and bias by the trial judge, and the incompetence of his legal representation at trial and on appeal, led to a substantial miscarriage of justice.
The respondent then noted that she had ‘carefully considered the petition and the material before’ her, and that she had concluded that — ‘overall’ — the applicant’s petition ‘does not raise a reasonable possibility that the Court of Appeal would allow an appeal if the matter was referred to it under s 327 of the CPA’.[30] ‘In particular’, the respondent wrote: ‘I do not accept that there is a reasonable possibility’[31] that:
•the verdict of the jury was unreasonable or cannot be supported having regard to the evidence led in [the applicant’s] criminal trial,
•there was an error or irregularity in the trial that caused a substantial miscarriage of justice,
or
• there was a substantial miscarriage of justice for any other reason.
[30]Emphasis added.
[31]Emphasis added.
Then the respondent gave detailed reasons justifying her conclusions reached in respect of each of the various issues, or concerns, that the applicant had raised.
As to the ‘Massie issue’, the respondent said:
Whilst I acknowledge that the points raised in [the applicant’s] petition for mercy and by Croucher J in Zhong v Attorney-General [2020] VSC 302 about the correct interpretation and application of section 321G(2)(b) of the Crimes Act are arguable, I consider the preferable view is that the trial judge was correct to consider himself bound by the Court of Appeal’s decision in Massie about the proper construction of s 321G(2)(b) because any difference in the facts between [the applicant’s] case and Massie were immaterial to the Court of Appeal’s interpretation of the provision. I also consider that the Court of Appeal was correct in its interpretation in Massie. In view of this, I consider that [the applicant’s] concerns about defects in his conviction arising from the trial judge’s reliance on Massie are unlikely to be accepted by the Court of Appeal as indicating a deficiency in the jury’s verdict and do not raise a reasonable possibility that the Court of Appeal would allow an appeal if I referred the matter to it under section 327 of the CPA.
Concerning the ‘timing of the intention’ issue, the respondent said:
I acknowledge that in the circumstances of [the applicant’s] case, it may have been preferable for the jury to have been directed as to the requirement for unanimity in their verdict as to when [the applicant] formed a concluded intention to incite the murder of [the applicant’s wife]. However, I do not consider that this matter is sufficient to establish that the verdict is unreasonable or not supported by the evidence. I consider it was open to the jury to be persuaded of [the applicant’s] guilt by the totality of the conversations they heard, or by the content of the final meeting on 3 August 2000. Either way, it was open to the jury to be satisfied of [the applicant’s] guilt and the verdict is, therefore, not uncertain. Accordingly, I do not consider that the absence of an unanimity direction raises a reasonable possibility that the Court of Appeal would allow an appeal if I referred the matter under section 327 of the CPA.
When it came to the respondent’s reliance on ‘new evidence’, the respondent reasoned as follows:
I have significant doubts about the veracity and admissibility of both the evidence of the loan to Mr Hu and the evidence of the increase in [the applicant’s] family health insurance. I consider that [the applicant] has not adequately explained why both pieces of evidence, that were reasonably available to him at the time of his trial, were not adduced at trial. Further, in view of the evidence that was led at trial, I do not consider that this new evidence would have impacted materially upon the jury’s verdict. That means, even if the Court of Appeal allowed this evidence to be adduced, I do not consider it is cogent evidence capable of impacting upon the jury’s verdict or demonstrating to the Court of Appeal that there is reasonable doubt in relation to that verdict. Accordingly, I do not consider that the new evidence assists in demonstrating that, in [the applicant’s] case, there was a reasonable possibility of a miscarriage of justice or there is any other reason to refer the matter to the Court of Appeal.
As to the applicant’s assertions of ‘[c]orruption, bias, incompetence, and unfairness’, the respondent considered these grounds to be ‘misconceived and/or unsupported by credible evidence’. The respondent considered that on the material before her there was no ‘legitimate basis’ for these concerns on the applicant’s part.
Under the heading of ‘Charter rights’ the respondent reasoned that because the applicant’s petition did not raise a ‘reasonable possibility that the Court of Appeal would allow an appeal, if a referral were made’ or ‘otherwise suggest his conviction and sentence are unlawful’, she did not consider that any rights the applicant had under the Charter ‘would be affected by [her] decision not to exercise [her] power under s 327 of the CPA’.
Finally, the respondent concluded that having regard to the material provided by the applicant, and the arguments that he had made, she did not consider that she would be assisted by an opinion from the Trial Division of the Supreme Court about ‘any point’ arising from the applicant’s case. The respondent did not consider that there was ‘any other reason’ for her to take action under s 327 of the CPA in relation to the applicant’s case.

Justice Ginnane’s decision

As described above, the applicant sought judicial review of the respondent’s refusal to refer his case to the Court of Appeal on the basis of the applicant’s third petition. The nature of the case that the applicant made before Ginnane J is conveniently summarised in Ginnane J’s reasons.

Justiciability

The applicant maintained before Ginnane J that the respondent’s decision was reviewable; the respondent submitted to the contrary. Nevertheless, the respondent invited Ginnane J to take a ‘neutral position’ on the issue of justiciability. Ginnane J did not, in the end, consider it necessary to decide this issue.[32]

The applicant’s grounds of appeal

[32]Ginnane J’s reasons, [30]–[31].

Ginnane J identified that there were essentially three grounds upon which the applicant relied in order to support his case for judicial review.[33]
[33]Ginnane J’s reasons, [32]–[34].
The first ground was that by failing to fulfil her executive duty to consider whether the applicant was wrongly convicted, the respondent had violated the applicant’s fundamental human rights under ss 8, 24(1), 25 and 38 of the Charter. The applicant had contended that these rights are equivalent to arts 2, 14 and 16 of the International Covenant on Civil and Political Rights which, so the applicant submitted, may be considered under s 75(i) of the Australian Constitution in light of Australia’s obligations under various treaty provisions.[34]
[34]Ginnane J’s reasons, [32].
Ginnane J summarised the applicant’s submissions made under this ground.[35] His Honour characterised the applicant’s argument in the following manner:
In ground 1, the [applicant] alleges that the State of Victoria has violated his human rights. He referred to the rights under ss 8, 24(1), 25(1), 25(2), 25(d), 25(4) and 38 of the Charter. He contended that the violation of those rights had caused a substantial miscarriage of justice.
The [applicant] claims that the trial judge violated his human rights by ‘pressuring’ his counsel to represent him ‘inadequately’. He also claims that he was not afforded his Charter rights under s 25(2)(b), as the State denied him adequate time to prepare his case by allegedly withholding audio tapes from him.
The [applicant] argued that s 327 does not confer absolute power on the Attorney-General, enabling her to disregard her obligations under sections 32, 38 and 39 of the Charter.
The [applicant] argued that the [respondent’s] reasons for refusing his petition were ‘baseless and illogical’ and, in breach of s 38 of the Charter. This was because the [respondent] delayed and failed to regard his unlawful conviction as caused by the State’s violation of his human rights and in her duty to refer his full case to the Court of Appeal. The [respondent] did not afford the [applicant] the presumption of innocence. By refusing to refer his case to the Court of Appeal, when Croucher J found errors of law on the face of the record, she violated s 8 of the Charter. As a result, she undermined confidence in the rule of law and the criminal justice system.
The [applicant] alleged that the [respondent] did not perform her duty because she failed to accept that he was wrongfully convicted. This wrongful conviction is said to have been caused by ‘the State’ violating the [applicant’s] rights under sections 8, 24(1) and 25 of the Charter and s 75(i) of the Constitution.[36]
[35]Ginnane J’s reasons, [43]–[48].
[36]Ginnane J’s reasons, [43]–[47].
The applicant’s second ground of appeal contended that the respondent had a ‘duty’ to refer the applicant’s petition to the Court of Appeal under s 327(1)(a) of the CPA.[37] Ginnane J noted that the ‘duty’ relied upon by the applicant was said to have arisen out of three ‘jurisdictional kernels’. Ginnane J then summarised the three ‘jurisdictional kernels’:
(a)Croucher J’s judgment in Zhong v Attorney-General which it is contended agreed that the [applicant’s] conviction could not be proved by the police and that the Court jurisdictionally erred in law by unlawfully convicting him and omitting to consider the statutory operation of s 321G(2)(b) of the Crimes Act 1958;
(b)Fresh evidence proved that the jury wrongly convicted the [applicant] as the police and the trial judge violated his human rights and denied him a fair trial according to law and admissible evidence, and interfered to create a gender biased jury.
(c)(a) and (b) exonerate the [applicant] and prove his innocence.[38]
[37]Ginnane J’s reasons, [33].
[38]Ginnane J’s reasons, [33].
The applicant’s submission concerning the first ‘kernel’ was, in essence, that the respondent had ‘undermined the integrity of the justice system’ given that Croucher J had found that there were errors of law on the face of the record as well as a miscarriage of justice.[39]
[39]Ginnane J’s reasons, [50].
Pursuant to the second ‘kernel’, the applicant submitted that fresh evidence would establish that the applicant was wrongfully convicted. This fresh evidence related to police corruption concerning the falsification and tampering by police of audio-tape recordings as well as corruption on the part of the trial judge at the applicant’s trial. This evidence was said also to relate to a $5,000.00 loan that the applicant said he had made on 4 August 2000 to Mr Hu which was argued to be inconsistent with the applicant’s guilt. The applicant relied on evidence of the applicant, on 17 August 2000, having altered an insurance policy that covered the applicant, his wife and his child.[40]
[40]Ginnane J’s reasons, [51].
Ginnane J noted a further argument that had been made under this particular ‘jurisdictional kernel’. His Honour characterised this further submission in the following terms:
The [applicant] again alleged that both the police and the trial judge were ‘biased’, and did not afford him a fair trial according to law and admissible evidence. It was not logically open to the jury to convict him. Part of this argument also involved the ‘Massie’ issue. The [applicant] argued that the trial judge wrongly applied the reasoning of the Court of Appeal in R v Massie. By failing to acknowledge this, and follow the decision in R v Said,[41] the Attorney-General ‘chose not [to] let the Court of Appeal correct the errors of law that they had made in both the [applicant’s] original appeal, and in Massie itself.’ He alleged that the Attorney-General erred because there was no objective material facts or evidence that he committed the physical acts of incitement to murder. In addition to the physical element of incitement, the prosecution had to prove that he intended that ‘Mark’ would kill his de facto wife and that his intention or belief existed at the time when ‘Mark’ was expected to kill her.[42]
[41][2009] VSCA 244.
[42]Ginnane J’s reasons, [52].
Under the third ‘jurisdictional kernel’ the applicant argued that the first two kernels exonerated him. Ginnane J characterised this submission as ‘not so much a distinct argument as a concluding remark’.[43]
[43]Ginnane J’s reasons, [53].
The third ground of appeal relied on by the applicant alleged that the respondent had failed in her duty to protect human rights and eliminate sex discrimination in breach of ss 5, 10, 15 and 44 of the Equal Opportunity Act 2010 (‘EO Act’) and ss 8 and 38 of the Charter. The essence of this ground was to contend that there had been an irregularity in the process of jury selection at the applicant’s trial. It was said that this irregularity had resulted in the empanelment of a jury that was disproportionately female and thus was gender-biased against the applicant.[44]

Ginnane J’s conclusions concerning the applicant’s grounds, as particularised

[44]Ginnane J’s reasons, [54]–[56].

Ginnane J rejected the applicant’s grounds. As to ground 1, in summary, his Honour determined that s 327 of the CPA does not imposed any ‘duty’ on the respondent to refer a case to the Court of Appeal. Ginnane J held that the applicant had failed to establish that the respondent had breached any of the applicant’s Charter rights when making her decision. Ginnane J determined that s 75(i) of the Constitution was not relevant to any of the issues that his Honour had to decide.[45]
[45]Ginnane J’s reasons, [61]–[65].
As to the first ‘kernel’ included within the applicant’s second ground of appeal, Ginnane J held that the decision of Croucher J did not establish that the applicant was wrongfully convicted or that that ‘the Court made a jurisdictional error associated with his conviction’. None of Croucher J’s concerns with the applicant’s conviction established that the respondent had committed reviewable error in failing to refer the applicant’s case to the Court of Appeal.[46]
[46]Ginnane J’s reasons, [67].
Ginnane J noted that Croucher J had considered that the evidence relied on by the applicant of the loan, and the alteration of the insurance policy, did not qualify as fresh evidence.[47] Ginnane J considered that Croucher J’s views concerning whether Massie was correctly decided, or (assuming that Massie was correctly decided) whether Massie could be distinguished on the facts, did not in either case provide a basis to quash the respondent’s decision.[48] Ginnane J noted that any concerns expressed by Croucher J about a failure to direct as to unanimity were qualified by the fact that Croucher J had not been ‘favoured with the full transcript of the trial or all of the trial exhibits’. Ginnane J observed that, to the contrary, the respondent had ‘considered a variety of materials, including transcripts and depositions from the [applicant’s] trial’.[49]
[47]Ginnane J’s reasons, [68]–[69].
[48]Ginnane J’s reasons, [70]–[71].
[49]Ginnane J’s reasons, [72]–[73].

In Ginnane J’s view, ‘[t]he matters raised by Croucher J [did] not, by themselves, enable a conclusion to be drawn about whether the [respondent] made a judicially reviewable error in her decision’.[50]
[50]Ginnane J’s reasons, [75].
Concerning the second ‘kernel’ of the applicant’s second ground — fresh evidence — Ginnane J noted that the evidence that was sought to be relied upon in the present proceeding had been determined not to be ‘fresh and compelling’ by the Court of Appeal at the applicant’s unsuccessful second and subsequent appeal.[51] As Ginnane J observed:
The [respondent] made her decision before the Court of Appeal gave its judgment. But, that judgment supports her approach and conclusion in refusing to refer the petition to the Court of Appeal on the basis of fresh evidence.[52]
[51]Ginnane J’s reasons, [76]–[85].
[52]Ginnane J’s reasons, [86].
Ginnane J rejected the applicant’s ground 3.[53] His Honour determined that neither s 15 nor s 44 of the EO Act were ‘relevant to the [respondent’s] decision on whether to refer the petition to the Court of Appeal’,[54] and that the applicant had failed to show ‘any impropriety or invalidity’[55] in the empanelling of the jury that convicted him. As Ginnane J found: ‘There is no requirement that [a] jury consist of any minimum number of either men or women.’[56]

Ginnane J’s conclusions expressed in response to a properly formulated application for judicial review

[53]Ginnane J’s reasons, [87]–[89].

[54]Ginnane J’s reasons, [87].

[55]Ginnane J’s reasons, [88].

[56]Ginnane J’s reasons, [89].

Although Ginnane J dealt with the above three particular grounds of appeal, his Honour noted that the applicant’s arguments essentially ‘discussed the merits of the [respondent’s] decision and the [applicant’s] arrest, trial and appeal’.[57] Ginnane J noted that, as such, the applicant’s submissions ‘did not address in detail the grounds that are usually relied on in judicial review proceedings’.[58] In order to place the applicant’s case within the scope of a recognisable field of inquiry concerning judicial review, Ginnane J took the applicant to contend, for instance under ground 1, that the respondent ‘had acted unreasonably by refusing to refer the petition to the Court of Appeal’.[59]
[57]Ginnane J’s reasons, [35] (emphasis added).
[58]Ginnane J’s reasons, [35].
[59]Ginnane J’s reasons, [36] (emphasis added).
Ginnane J observed that:
The essence of the [applicant’s] submission was that the body of evidence supporting his application for a referral was so convincing that the [respondent] simply had to order a referral or was acting unreasonably. It is in that sense that the [applicant] used the term ‘duty’.[60]
[60]Ginnane J’s reasons, [39].
Ginnane J expanded upon this particular characterisation of the applicant’s argument. Later in his reasons, Ginnane J described the applicant’s ‘underlying submission’ to be one which contended that the respondent’s refusal to refer the applicant’s case ‘was unreasonable in the Wednesbury sense’[61] having regard to the bases that were relied upon by the applicant in his third petition. This being the case, Ginnane J gave close consideration to the notion of ‘[u]nreasonableness, in the legal sense’ as applied to the discretion conferred upon the respondent by s 327 of the CPA.[62]
[61]Ginnane J’s reasons, [90].
[62]Ginnane J’s reasons, [91]. See, also, Ginnane J’s reasons, [90]–[96].
Ginnane J concluded that the respondent was entitled to conclude that there was no ‘reasonable possibility’ that the Court of Appeal would allow the applicant’s appeal on the basis of the various complaints that formed the subject matter of the applicant’s third petition.[63] Noting the ‘gatekeeper’ role[64] performed by the respondent in exercising the discretion conferred upon her by s 327, Ginnane J concluded that:
The [respondent] had regard to the many materials to which I have referred and drew conclusions based on them. She gave reasons for her conclusions and no factual error or unreasonable decision is apparent. In undertaking this analysis, the [respondent] was exercising the power and discretion given to her under s 327.[65]
[63]Ginnane J’s reasons, [93]–[94].
[64]See Ginnane J’s reasons, [96]. The notion of the Attorney-General acting as ‘gatekeeper’ appears in the reasons of Logan J in Martens v Commonwealth (2009) 174 FCR 114, 128 [53]; [2009] FCA 207 (‘Martens’) and is cited with approval in Ginnane J’s reasons at [96].
[65]Ginnane J’s reasons, [97].
Ginnane J then returned — ‘at the risk of repetition’[66] — to each of the four essential complaints raised in the applicant’s third petition. These were ‘ [t]he Massie issue’, ‘[t]he timing of the intention’, ‘[n]ew evidence’ and ‘[c]orruption, bias, incompetence and unfairness’. Ginnane J examined each of these issues, in turn, so as to determine whether the respondent’s decision refusing referral was a legally unreasonable one.[67]
[66]Ginnane J’s reasons, [98].
[67]See Ginnane J’s reasons, [99]–[106].
Ginnane J considered that it was not legally unreasonable for the respondent to conclude that the trial judge at the applicant’s trial was bound by the Court of Appeal’s decision in Massie, and that any concerns expressed by Croucher J in respect of Massie’s correctness were unlikely to be accepted by the Court of Appeal. This was so because the Court of Appeal had considered the application of Massie as part of the applicant’s original appeal in 2003; moreover no subsequent Court of Appeal decision had suggested that Massie was wrongly decided.[68]
[68]Ginnane J’s reasons, [99]–[100].
Ginnane J considered that, on the material to which the respondent had access, it was not unreasonable for her to conclude that the issue of ‘[t]he timing of the intention’ was insufficient to establish that the verdict of guilty at the applicant’s trial was unreasonable or not supported by the evidence. Ginnane J considered that it was open to the jury to be persuaded of the applicant’s guilt having regard to the totality of the conversations that the jury heard, or by the content of a final meeting that the applicant had with Mark on 3 August 2000.[69]
[69]Ginnane J’s reasons, [101]–[102].
In view of the fate of the applicant’s second or subsequent appeal, the fresh evidence relied on by the applicant in support of his third petition was not ‘fresh and compelling’ and, as such, Ginnane J considered that the respondent ‘did not err’ in reaching a ‘substantially similar conclusion’.[70] Given the Court of Appeal’s reasoning at the applicant’s second or subsequent appeal, in Ginnane J’s view the respondent was entitled to conclude that there were ‘significant doubts about the veracity and admissibility’ of the loan and insurance evidence and that the failure by the applicant to adduce this evidence at trial had not been sufficiently explained by the applicant.[71]
[70]Ginnane J’s reasons, [104].
[71]Ginnane J’s reasons, [103].
In view, also, of the fact that the applicant had failed to produce any credible evidence to support his claims of corruption, bias, incompetence and unfairness, Ginnane J found no error on the respondent’s part in her conclusion that these claims were unsubstantiated. By reference to the material that had been placed before the respondent by the applicant, the applicant had failed to provide ‘any legitimate basis for [the applicant’s] concerns about corruption, bias … or incompetence of his legal representatives’.[72]
[72]Ginnane J’s reasons, [105].
Thus, in conclusion, Ginnane J held as follows:
I conclude that the [applicant] has not established that the [respondent] exercised her power unreasonably by refusing to grant a referral of his petition to the Court of Appeal on the bases he contends. Other than the [applicant] simply asserting that the [respondent’s] decision was wrong, he has not proved any ground that establishes that she failed to exercise her power and discretion validly.[73]
[73]Ginnane J’s reasons, [106].

Applicant’s submissions

The applicant’s proposed grounds of appeal are seven in number; nevertheless they are the subject of somewhat lengthy and discursive expression. In support of the proposed grounds, the applicant filed a substantial volume of written material including a written case, numerous annexes, written submissions from earlier hearings, letters, indexes, summaries of evidence, affidavits, statutory declarations, transcripts, police statements, submissions in reply and supplementary submissions in reply. On the day of the oral hearing of this application the applicant relied on a five page, closely typed, document entitled ‘Evidential Reasons of Substantiating Systemic Corruption’. The applicant filed a notice addressed to the Victorian Equal Opportunity and Human Rights Commission relating to a question of law that is said to arise under the Charter as well as a notice of a constitutional matter in accordance with s 78B of the Judiciary Act 1903 (Cth). The Attorneys-General for each of the States and the Commonwealth did not intervene; nor did the Victorian Equal Opportunity and Human Rights Commission intervene in the present proceeding.
The applicant alleges that there were errors at his trial in the form of erroneous judicial directions, lack of evidence, wrongful jury empanelment, bias, corruption and incompetence on the part of his legal representation. Although not, at least expressly, pleaded in his proposed grounds of appeal, the applicant — as is apparent from the other material that he has filed — also contends that his conviction cannot stand in light of fresh evidence that was not adduced at his trial.
It is apparent, also, that the applicant alleges breaches of the Charter. The main claim of Charter error can be found in the applicant’s proposed ground 1. But these claims are neither particularised nor given substance, that is to say, apart from the manner in which these alleged breaches are sought to be tethered to, or made consequential upon, the various substantive deficiencies that find expression in the applicant’s other proposed grounds of appeal. Indeed, so much is reflected in the terms of the applicant’s proposed ground 1, which pleads that ‘[t]his Ground of Appeal is generally applied to all the other same repeated errors of the appeal Grounds from Ground [2] to Ground [7] as follows’. There are, in the applicant’s materials, occasional assertions that Ginnane J breached various of the applicant’s Charter rights. Again, when examined closely, it seems apparent that these alleged breaches are linked to Ginnane J’s alleged failure to uphold various of the applicant’s other complaints of substantive error.
As will be seen, the applicant’s contentions of substantive error appear to be largely identical to those that were identified by the respondent in her reasons, and by Ginnane J in his Honour’s reasons. They relate almost entirely to the merits of the respondent’s decision, as well as the merits of the applicant’s arrest, trial and subsequent appeal. As occurred in the instance of Ginnane J, peppered throughout the applicant’s appeal material are claims alleging ‘Wednesbury unreasonableness’.[74] And, as was the case before Ginnane J, the applicant’s ‘underlying submission’ in this Court — as confirmed by the applicant’s oral submissions — was that Ginnane J had erred in failing to find that the respondent had committed Wednesbury or legal unreasonableness by refusing to refer the applicant’s case to the Court of Appeal pursuant to s 327 of the CPA.
[74]See Ginnane J’s reasons, [36]–[38].
Consistent with the substance of the applicant’s third petition and the essence of the applicant’s case before Ginnane J, the manner in which the applicant argued his case before this Court revealed contentions of error that can be grouped into five broad categories; these categories are able to be cross-referenced to various of the applicant’s proposed grounds of appeal. These categories of complaint are:
(a)That the trial judge misdirected the jury as to law of incitement by failing to direct in terms consistent with s 321G(2)(b) of the Crimes Act — proposed ground 2: (‘the Massie issue’);
(b)That the applicant’s conviction for incitement to murder was ‘unreasonable or cannot be supported having regard to the evidence’ either due to an insufficiency of evidence led at trial or due to uncertainty because of the failure of the trial judge to give a unanimity direction — proposed grounds 4 and 7: (‘the acquittal issue’);
(c)That the empanelment of the jury which convicted the applicant was improper, and thereby caused unfairness to the applicant, because the jury’s membership was predominantly female and was thus gender-biased against the applicant — proposed grounds 5 and 7: (‘the jury empanelment issue’);
(d)That the existence of fresh evidence requires the quashing of the applicant’s conviction (‘the fresh evidence issue’); and,
(e)That the applicant’s conviction ought be quashed on account of bias and corruption on the part of the trial judge and investigating police and on account of inadequate representation by the applicant’s counsel at trial — proposed grounds 3, 4, 6 and 7 (‘the bias, corruption and incompetence issue’).
Each of these categories may be taken in turn.
As to the Massie issue, the applicant repeated submissions that he had made to the respondent in his third petition and to Ginnane J. It was submitted that the trial judge’s failure to direct the jury in accordance with the terms of s 321G(2)(b) of the Crimes Act had caused a miscarriage of justice. It was submitted that it was integral that such a direction be given in the present case because Massie was either wrongly decided, or it was distinguishable on the facts. A relevant factual difference was said to lie in the somewhat more attenuated, or conditional, nature of the applicant’s alleged incitement when compared to the facts of Massie.[75] The applicant claimed that Ginnane J erred by failing to find legally unreasonable the respondent’s decision not to refer the applicant’s case to the Court of Appeal on this basis.
[75]See footnote 5 above. The facts of Massie [1999] 1 VR 542; [1998] VSCA 82 are summarised at 543–5 [2]–[8] of the judgment.
As to the acquittal issue, the applicant submitted that there was insufficient evidence adduced by the prosecution at trial to justify the applicant’s conviction. In oral submissions before this Court the applicant denied that he had ever wanted his ex-wife killed. He described that, in August 2000, he had been concerned about his daughter’s welfare and safety. This was due to a complaint that the daughter had made about a sexual assault that had been committed upon her by a paedophile who was said to have lived with the applicant’s ex-wife. This arose after the applicant and his ex-wife had separated. The applicant told the Court that he had raised this problem with his ex-wife but she responded by threatening the applicant with police charges. The applicant said that he had also been assaulted by his ex-wife. The applicant said that as a consequence of this, he went to the Family Court in order to secure his daughter’s safety. The applicant said that he reported the assault to police but the police refused to assist. Rather, police ‘framed’ the applicant by entrapping him into hiring Mark. Crucially, it was submitted by the applicant that he had never given Mark the ‘green light’, or any authorisation at all, to kill his ex-wife.
A further reason why it was submitted the verdict of guilty could not be sustained was because, at the applicant’s trial, the evidence revealed that over the period that the applicant had been in contact with Mark, the two had taken part in a series of meetings. There were times when the applicant had vacillated in his resolve to have Mark kill the applicant’s ex-wife. In these circumstances, so it was submitted, it was necessary that the jury be directed that they had to be unanimous concerning when, or at which meeting, the applicant formed a concluded intention to incite, and did in fact incite, Mark to kill.
Again, the applicant claimed that Ginnane J had erred by failing to find legally unreasonable the respondent’s decision not to refer the applicant’s case to the Court of Appeal on this basis.
As to the jury empanelment issue, the applicant claimed that the jury empanelled to try his case was made up, disproportionally, of women. The applicant submitted that, in consequence, his jury was thus prejudicially gender-biased against him. It was submitted that it was legally unreasonable for the respondent not to refer the applicant’s case to the Court of Appeal on this basis.
Insofar as the fresh evidence issue is concerned, the applicant submitted that the new evidence of him, at or around the time of the alleged incitement, having loaned $5000.00 to Mr Hu as well as the evidence of him having increased the level of insurance cover for his then wife (so, it was submitted by the applicant, that she might undergo laser surgery on her eyes) was evidence which, had it been placed before the jury, would have called the applicant’s conviction into question. The applicant submitted that Ginnane J erred by not finding that the respondent committed judicially reviewable error, in the Wednesbury or legal unreasonableness sense, by not referring the applicant’s case to the Court of Appeal on this basis.
Finally — as to the bias, corruption and incompetence issue — the applicant made various allegations of bias and corruption on the part of the trial judge who presided at the applicant’s trial. Bias was said to result from the judge having formerly occupied the position of Director of Public Prosecutions for Victoria. It was alleged, moreover, that the judge had acted corruptly by knowingly countenancing the illegal tampering with audio-taped evidence by the police. It was submitted that this corrupt behaviour prevented the applicant from advancing his defence at trial. The applicant claimed, also, that he had been inadequately represented. The applicant claimed that his trial counsel had failed properly to cross-examine witnesses and that this was due to pressure which had been brought to bear upon trial counsel by the trial judge in light of the judge’s desire to conduct a ‘speedy trial’. Again, the rejection of these matters, was said to taint the respondent’s decision with legal unreasonableness.

Respondent’s submissions

The respondent, as had occurred before Ginnane J, did not raise any issue as to the justiciability of review of the decision made under s 327(1) of the CPA. The respondent submitted that the applicant’s arguments were directed to the merits of her decision made under s 327(1). It was submitted that those arguments do not assist in establishing whether the respondent made an appealable error let alone whether the respondent made a legal error amenable to prerogative relief. It was submitted that, in any event, earlier judicial determinations — either on appeal, or at first instance — had given careful consideration to the applicant’s arguments and found them to be lacking in merit (including arguments made in respect of the Charter). At its highest, it was submitted that the applicant’s case could only be characterised as an assertion that the respondent’s decision not to refer his petition to the Court of Appeal was legally unreasonable and that Ginnane J had erred by not concluding that this was so. The respondent submitted that the applicant had failed to show any appealable error.

Consideration

Introduction

In Victoria, the prerogative of mercy is vested in the Governor and is exercised on the advice of the Premier in accordance with s 87E(b) of the Constitution Act 1975.[76] Section 327 of the CPA is ‘ancillary to the prerogative of mercy’ and provides both a substitute for, and an alternative to, the invocation and exercise by the Governor of the prerogative power.[77]
[76]Australia Act 1986 (Cth) ss 7(2), (5); Constitution Act 1975, s 87E(b).
[77]See Mallard v The Queen (2005) 224 CLR 125, 129 [6]; [2005] HCA 68 (‘Mallard’). The High Court in Mallard examined the Western Australian reference power analogous to the Victorian s 327(1), namely, s 140(1)(a) of the Sentencing Act 1995 (WA).

Chapter 7 of the CPA is headed ‘Reference to Court of Appeal on petition for mercy’. Section 327 of the CPA, entitled ‘Reference by Attorney-General’, is in the following terms:
(1)If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of His Majesty’s mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General—
(a)may refer the whole case to the Court of Appeal; or
(b)may refer any point arising in the case to the judges of the Trial Division of the Supreme Court for their opinion.
(2)If the Attorney-General refers the whole case to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were an appeal by the person.
(3)If the Attorney-General refers a question to the judges of the Trial Division of the Supreme Court, those judges or any 3 of them must consider the point and provide the Attorney-General with their opinion.
(4)Nothing in this Chapter affects the prerogative of mercy.
It was unnecessary for Ginnane J to decide the issue of the justiciability of the application to review the respondent’s decision made under s 327(1). Given the position adopted by the respondent in respect of this issue, and in view of the conclusions that we would have reached assuming the availability of judicial review, it is unnecessary that we decide the question of justiciability.[78]
[78]The amenability to judicial review of the exercise of a discretion in the nature of the discretion exercised by the respondent in the present case is examined in cases such as Holzinger v Attorney-General(Qld) (2020) 5 QR 314; [2020] QCA 165 and Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; (2020) FCAFC 180. See also Julian R Murphy, ‘Rationalising Mercy: The Statutorification of the Prerogative of Mercy and Its Amenability to Judicial Review’ (2023) 107 AIAL Forum 120.
As is apparent, when reflecting upon the subject matter, scope and purpose of legislative discretion conferred by s 327(1), Ginnane J upheld the respondent’s reliance upon the application of a test which posed for consideration whether, by virtue of the various errors and deficiencies relied upon by the applicant, he had established a ‘reasonable possibility’ that his appeal would be allowed by the Court of Appeal. As is also apparent, Ginnane J concluded that it was not legally unreasonable for the respondent to conclude that the applicant had failed to establish such a ‘reasonable possibility’.

Principle – legal unreasonableness

On the assumption that review of the respondent’s decision is justiciable, and in light of the fact that the applicant’s basal submission of error on Ginanne J’s part lay in his Honour’s failure to find legal unreasonableness on the part of the respondent, it becomes necessary for this Court to examine the respondent’s decision in order to determine whether Ginnane J was correct to conclude that this decision was not legally unreasonable.[79]
[79]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 580 [117] (Nettle and Gordon JJ); [2018] HCA 30.
It is necessary therefore to look at the scope and purpose of s 327(1) to determine whether the respondent’s decision complies with the standard of reasonableness indicated by the true construction of the statute, or whether the statutory power has been abused.[80] How an abuse of statutory power may manifest itself is not closed; nor is it ‘limited by particular categories of conduct, process or outcome’ or limited to a decision ‘affected by specific errors which bring about an improper exercise of power’.[81] An abuse of statutory power is not limited to a decision that may be described as ‘manifestly unreasonable’ or to one that might be described as an ‘irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it’.[82] A conclusion of legal unreasonableness may be ‘outcome focussed’ such as where there is no ‘evident and intelligible justification for the decision’.[83] If, for instance, the ‘dominating, actuating reason for the decision is outside the scope of [the statutory] purpose, the discretion has not been exercised lawfully’.[84] Where the reasons of a decision maker demonstrate a justification for the exercise of the power it would be rare to find unreasonableness.[85]
[80]Ibid 549 [4] (Kiefel CJ), 572–3 [80] (Nettle and Gordon JJ).
[81]Ibid 573 [81] (Nettle and Gordon JJ).
[82]Ibid 573 [82].
[83]Ibid.
[84]Ibid 551 [12] (Kiefel CJ).
[85]Ibid 574 [84] (Nettle and Gordon JJ).
In Minister for Immigration and Citizenship v Li (‘Li’)[86] the plurality observed:
The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
...
The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal unreasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.
…
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.
...
[I]n Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[87]
[86](2013) 249 CLR 332; [2013] HCA 18.
[87]Ibid 362 [63], 363 [66], 364 [68], 365–6 [72] (Hayne, Kiefel and Bell JJ). See also at 370 [88]–[89] (Gageler).
The plurality in Li observed that ‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.[88] The ‘stringency’ of the test for legal unreasonableness ‘remains’.[89]
[88]Ibid 367 [76] (Hayne, Kiefel and Bell JJ). See also at 349 [25] (French CJ); 375 [105] (Gageler J).
[89]Ibid 377–8 [113] (Gageler J).
Crennan and Bell JJ, in Minister of Immigration and Citizenship v SZMDS (‘SZMDS’),[90] observed that a decision might also be unreasonable ‘if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn’.[91] But their Honours, Crennan and Bell JJ, observed that a decision will not be unreasonable if it lies within the scope of rational decision-making, that is to say, ‘if there is room for a logical or rational person to reach the same decision on the material before the decision maker’.[92]
[90](2010) 240 CLR 611; [2010] HCA 16.
[91]Ibid 649–50 [135].
[92]Ibid 649 [135].
Drawing upon dicta found in Minister for Immigration and Border Protection v SZVFW,[93] Li and SZMDS, Gordon J, in Plaintiff S183/2021 v Minister for Home Affairs,[94] observed relevantly that:
The principles [concerning legal unreasonableness] are well established and may be stated shortly. ‘Parliament is taken to intend that a statutory power will be exercised reasonably by a decision maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision maker’ … That conclusion will be open where a decision is ‘so unreasonable that no reasonable person could have arrived at it’, although it is by no means limited to such a case. It is concerned with both outcome and process.[95]

The discretion to refer

[93](2018) 264 CLR 541; [2018] HCA 30.

[94](2022) 96 ALJR 464; [2022] HCA 15.

[95]Ibid 470 [31] (citations omitted).

The High Court, in Mallard v The Queen, explained the history of provisions in the nature of s 327(1) by reference to the cognate Western Australian provision — s 140(1)(a) of the Sentencing Act 1995 (WA). Gummow, Hayne, Callinan and Heydon JJ, in their Honours’ joint judgement observed, generally as to the interrelationship between the operation of provisions of this nature and the duty of the appellate court upon a reference having been made, as follows:[96]
Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.
The provision with which the Court is concerned in this case is similar in substance to provisions in other States.
The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.
…
Subject only to what we will say later about the words ‘as if it were an appeal’ which appear in s 140(1)(a) of the Act, the explicit reference to ‘the whole case’ conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words ‘the whole case’ embrace the whole of the evidence properly admissible, whether ‘new’, ‘fresh’ or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think[s] it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words ‘as if it were an appeal’ are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.
This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen:
The words of s 21(a) of the Code, so far as they require ‘the whole case ... [to] be heard and determined’, permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.
[96]Mallard (2005) 224 CLR 125, 128–9 [4]–[6], 131 [10]–[11]; [2005] HCA 68.
With particular focus upon judicial review of the exercise by a decision maker of a discretion whether or not to refer a petitioner’s case to an appellate court, guidance may be obtained from the observations of Lander J in von Einem v Griffin (‘von Einem’)[97] — a case concerning a reference power, analogous to the power found in s 327 of the CPA, contained in s 369 of the Criminal Law Consolidation Act1935 (SA). In von Einem, Lander J observed:
Judicial review would only be available to review the decision whether or not to exercise the discretion and then the subsequent exercise of that discretion to determine whether the exercise of the discretion conformed with the policy scope and objects of the Act.
What, then, is the policy or scope and objects of s 369. The section has no application unless a petition for mercy has been presented to the Governor. It therefore assumes that the petitioner has exhausted all of his or her legal rights and that all appeals have been exhausted and the conviction and the sentence must stand according to law.
The section further assumes that there may be circumstances, notwithstanding that all appeals have been exhausted, where it would be appropriate to refer this matter back to the court for further hearing as an appeal. In that respect the section perhaps contemplates that fresh evidence has emerged which might make the conviction unsafe or unsatisfactory. It also contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction.
The policy, purpose and object of s 369 is to ensure, so far as practicable, that no person is the victim of a miscarriage of justice.
The section has been included to allow for circumstances of the kind to which I have referred so that even if a person has exhausted all that person’s rights of appeal, that person will not be the victim of a miscarriage of justice, if later circumstances show that the conviction should not stand for any reason including that it is unsafe and unsatisfactory.
It is within that policy and purpose that the Attorney-General must act. When a petition is presented to the Governor and referred to the Attorney-General, apart from advising on the question of mercy, generally, the policy and purpose of s 369 is to have the Attorney-General apply his mind as to whether or not it would be appropriate to invoke the court’s jurisdiction yet again, notwithstanding that the appeal process has been exhausted, so that the court may determine whether, in any way, there has been a miscarriage of justice in relation to that petitioner.
The policy and purpose of this section is to require the Attorney-General to apply his mind as to whether it would be appropriate to refer the matter to the courts in either of the ways mentioned in s 369 in case there has been a miscarriage of justice.[98]
[97](1998) 72 SASR 110; [1998] SASC 6858.
[98]Ibid 138–9.
Lander J then gave consideration to whether the Attorney-General, in that case, had applied the correct test in determining whether, or not, to refer. The Attorney-General in von Einem approached the referral decision on the basis that ‘unless the material disclosed the reasonable possibility of a miscarriage of justice’ the Attorney’s ‘proper response’ was to advise the Governor to take no further action on the petition.[99] The plaintiff in von Einem argued that the correct test to be applied by the Attorney-General was to ask whether the case was ‘arguable’ in the same manner as a court determines whether to grant leave to appeal in respect of a proposed ground of appeal.[100] Lander J held that ‘it cannot be said that the criteria for granting leave to appeal is necessarily appropriate in determining whether or not a matter should be referred … pursuant to either of the limbs of s 369’.[101] In the end, as to the nature of the referral discretion, Lander J observed as follows:
There is a point of distinction between an application for leave to appeal and a reference under s 369. A matter which is being considered by the Attorney General under s 369 has already been the subject of appeal and all of the rights of appeal have already been exhausted.
In any event, it is not self-evident to me that the test that it is arguable that there was a miscarriage of justice is any less onerous than the test asked by the Attorney-General of himself, ie whether there was a reasonable possibility of a miscarriage of justice. It seems to me that the tests, in a sense, ask the same question. A point will not arguably show that there has been a miscarriage of justice unless there is a possibility that there has been a miscarriage of justice and, of course, that possibility must be reasonable.
However, the question is not so much whether the appropriate test was asked, the question is whether, in the circumstances, the test was so unreasonable that no sensible person could have adopted it.[102]
[99]Ibid 139.
[100]Ibid.
[101]Ibid 140.
[102]Ibid.
In the context of a instance where a petitioner sought referral of his case pursuant to s 672A of the Queensland Criminal Code on the strength of ‘fresh evidence’, Logan J in Martens v Commonwealth (‘Martens’) made the following observations concerning the nature of the discretion to refer:
Drawing these threads together, it follows, in my opinion, that it was relevant for the Minister, when considering an application requesting a reference under s 672A of the Queensland Criminal Code, to consider whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the Applicant. Not to consider such evidence at all or to fail to evaluate it by reference to such a test would, in my opinion, be to fail to take into account considerations made relevant by the subject matter, scope and purpose of s 672A. Were the evidence presented not, strictly speaking, “fresh”, as opposed to “new”, that circumstance would not, in itself warrant a Minister to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence.
Further, it seems to me to follow from the role consigned to the Court of Appeal on a reference under s 672A that it is no part of the role of the Minister, in deciding as a matter of discretion whether to refer a case himself, to apply a test to the whole of the case, including the new evidence, higher than that which the court would itself apply in evaluating the case were it to be referred.
The existence of a discretion undoubtedly means that a convicted offender has no right to the reference of his case. That the reference power is discretionary indicates that it was contemplated that the Minister would make some evaluative judgment as to whether a reference ought to be made but not in so doing usurp the role that was consigned to an appeal court in the event of a reference. In this sense, the Minister is a “gatekeeper” who has a role in ensuring that the public interest in the administration of justice as furthered by the efficient allocation of judicial resources is not subverted by the referring of cases to the Court of Appeal which must inevitably fail. That the Court of Appeal on a reference itself had power to disregard grounds which it considered frivolous would not, in my opinion, prevent a Minister from refusing to refer a case where there was neither any new evidence nor even a ground of challenge not previously adversely considered, but care would need to be taken not to treat as frivolous a reasonable argument with which the Minister happened to disagree.
Such considerations would not be exhaustive of matters to which the Minister might, without committing the error of taking into account an irrelevant consideration, advert in deciding whether or not to refer a case. Because, in making the decision, the Minister acts administratively, he might take into account material which would not be admissible on the consideration of a reference by the Court of Appeal. Thus, as for example, Mason CJ apprehended in his judgment in Mickelberg 167 CLR 259, he might note public concern as to the propriety of the conviction. His sources of information in this regard might, for example, be reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant or other information in an application for a pardon which did not constitute admissible evidence which could be considered by an appellate court on a reference. None of these would though be considerations that he was obliged to take into account, ie ‘relevant considerations’.[103]
[103]Martens (2009) 174 FCR 114, 128–9 [51]–[54] (emphasis added); [2009] FCA 207.

Logan J returned to the nature of the referral power contained in s 672A of the Queensland Criminal Code in Ogawa v Attorney-General [No 2].[104] This was a case where a petitioner, after sustaining criminal convictions and failing on appeal, sought referral of her case by the Attorney-General to the Queensland Court of Appeal. It was a case in which it was alleged that there had been a miscarriage of justice because certain evidence had not been led. Adhering to the view that his Honour had expressed in Martens, Logan J observed in respect of the Attorney that:
His role was to determine whether, as Lander J put it in Von Einem v Griffin, there was a reasonable possibility that there had been a miscarriage of justice or, as I put it in Martens to no different end, whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the Applicant.[105]
[104](2019) 373 ALR 689; [2019] FCA 1003.
[105]Ibid 708 [72] (emphasis added).
The sufficiency of a test which asks on an application for referral whether there is a ‘significant possibility that the jury, acting reasonably would have acquitted the Applicant’ was considered by the Queensland Court of Appeal in Holzinger v Attorney-General (Qld) (‘Holzinger’).[106] As the Court observed:
In short, to ask whether, but for the alleged failure to elicit evidence, ‘there was a significant possibility that the jury, acting reasonably, would have acquitted’ if the evidence had been led, is material in only particular kinds of cases and, even then, it may not be sufficient on its own, if the question is answered in the affirmative, to demonstrate that there has been a miscarriage of justice.[107]
[106](2020) 5 QR 314; [2020] QCA 165 (‘Holzinger’).
[107]Ibid 350 [109] (Sofronoff P, Morrison JA, Mullins JA).
The Full Court of the Federal Court in Attorney-General (Cth) v Ogawa[108] cited the Holzinger court’s acknowledgment that although:
the existence of a reasonably arguable case is a necessary condition for the proper commencement of litigation, it added that it ‘may not be a sufficient condition’ (at [59]). Their Honours concluded at [60] that the correct proposition was not that the Attorney-General must refer a case if it is reasonably arguable; rather, the Attorney-General must not refer a case unless he or she is satisfied that it is reasonably arguable.[109]
[108](2020) 281 FCR 1; [2020] FCAFC 180 (‘Ogawa’).
[109]Ibid 11 [47] (Allsop CJ, Flick and Griffiths JJ). Nevertheless, in Holzinger the Court examined broader considerations that may operate upon the exercise of the discretion to refer: see Holzinger (2020) 5 QR 314, 337–8 [60]–[66]; [2020] QCA 165. Although the Full Court of the Federal Court in Ogawa adopted and applied the reasoning in Holzinger (see ibid 15 [66]) it appears that some reservation was expressed by the Full Court concerning the approach described in the extracted passage at paragraph 100 above (see ibid 21 [90]).
It is apparent that the respondent adopted an approach akin to the method approved by Holzinger and the other authorities referred to above in exercising her discretion conferred by s 327 of the CPA. Without attempting to chart the limits of the discretion conferred by s 327 we are satisfied, in accordance with the above authorities, that in the circumstances of this case by asking whether by virtue of the various errors and deficiencies relied on by the applicant there was a ‘reasonable possibility’ that the Court of Appeal would allow the applicant’s appeal, the respondent did not stray beyond the bounds of a reasonable exercise of the conferred discretion. Ginnane J was thus correct in the circumstances of the present case to hold that by asking herself whether there existed a ‘reasonable possibility’ that the contents of the applicant’s third petition would cause the Court of Appeal to conclude that the applicant’s conviction was unreasonable or could not be supported having regard to the evidence (or that there was otherwise caused a substantial miscarriage of justice), the respondent did not unlawfully exercise the referral power contained within s 327(1).
Put another way, Ginnane J held that it was not legally unreasonable for the respondent not to refer the applicant’s case to the Court of Appeal. We consider that Ginnane J was correct to so hold.

Massie

As reflected in the respondent’s reasons, the respondent considered that the ‘preferable view’ was that the trial judge was correct to consider himself bound by Massie because any difference in facts between the applicant’s case and Massie was ‘immaterial’ and, moreover, it was the respondent’s view that Massie was correctly decided. Ginnane J considered that such reasoning on the respondent’s part was not legally unreasonable because not only had Croucher J declined to hold that the respondent had established legal unreasonableness by failing to refer the applicant’s case in light of Massie, the Court of Appeal had already considered the application of Massie during the applicant’s first appeal and no ‘subsequent Court of Appeal decision ha[d] suggested that Massie was wrongly decided’.[110]
[110]Ginnane J’s reasons, [100].
It was not legally unreasonable for the respondent to consider that, on the strength of Massie, the directions concerning incitement given by the trial judge in the present case were sufficient to deal with the issues that were in dispute at the applicant’s trial. The judge at the applicant’s trial directed the jury that the prosecution were required to prove that the applicant, ‘with the intention of having [Mark] kill [the applicant’s former wife], incited [Mark] to kill her’.[111] Directions of this nature were sufficient, assuming the correctness of reasoning contained in Massie.[112] According to such reasoning , the circumstances that might have warranted the giving of a direction in accordance with s 321G(2)(b) of the Crimes Act did not arise at the applicant’s trial.[113] Indeed, according to such reasoning any charge to the jury at the applicant’s trial which included a direction of the type now sought by the applicant would, according to the Court of Appeal in Massie, likely have been described as an ‘unhappy one’[114] and one ‘not directed to the point which the framers of [para (b) of s 321G(2)] had in mind’.[115]
[111]Croucher J’s reasons, [323].
[112]For instance, see Massie [1999] 1 VR 542, 547 [18] (Brooking JA); [1998] VSCA 82.
[113]Ibid 547 [16]. See, in particular, the dicta of Brooking JA in Massie set out in footnote 28 above. It appears that Croucher J would have considered Massie, in its holding that s 321G(2)(b) represented an enactment of the proposals put forth by the Working Group on conspiracy, to have decided that such circumstances would arise presumably only in the instance of an offence of ‘absolute or strict liability’: see Croucher J’s reasons at [330], [334].
[114]Ibid 548 [21].
[115]Ibid 549 [22]. The similarity between the type of direction that the applicant would seek and the direction deprecated in Massie becomes evident by comparison of Croucher J’s reasons at [282](c) with Massie at 547 [17].
But the situation that confronted the respondent was one where it was apparent that the applicant had raised the Massie issue, and — in particular — the trial judge’s failure to direct in accordance with s 321G(2)(b) of the Crimes Act, before the Court of Appeal at his initial conviction appeal. And yet that Court did not uphold the applicant’s submission.[116] The applicant again raised the same point before the High Court at his application for special leave to appeal; and yet again, the point did not succeed.[117]
[116]Croucher J’s reasons, [57].
[117]Croucher J’s reasons, [57].
Ginnane J was therefore correct to hold that the respondent had not committed legal unreasonableness by failing to refer the applicant’s case due to the Massie issue. It was reasonably open to the respondent to conclude as she did on this issue.

Unanimity

Ginnane J was correct to determine that that the respondent’s failure to refer the applicant’s case because of the acquittal issue was not legally unreasonable. To the extent that the applicant submitted that there was, generally speaking, an insufficiency of evidence to sustain his conviction, this matter was decided against the applicant by the Court of Appeal at the applicant’s first appeal.[118] On the question of the timing of the applicant’s intent and its correspondence with various meetings that the applicant conducted with Mark, the respondent considered that the verdict was not uncertain because it was open to the jury to convict on the totality of the conversations that they had, or by reference to the content of the final meeting with Mark. The applicant relied on doubts expressed by Croucher J in this regard, but it is necessary to note that any such doubt expressed by Croucher J was qualified by the fact that his Honour had not been furnished with a complete transcript of the applicant’s trial.[119] The respondent, on the other hand, was provided with a variety of materials, including transcripts and depositions from the applicant’s trial.
[118]See the conviction appeal reasons, 224 [20].
[119]Croucher J’s reasons, [477].
Supplied with the transcript of the applicant’s trial, and having determined that in order to convict all members of the jury must at least have concluded that the mental and physical elements of the crime of incitement coincided at the date of the last meeting, it was not legally unreasonable for the respondent not to refer the applicant’s case to the Court of Appeal on this basis. Again, Ginnane J was correct to so conclude.

Jury empanelment

Nor did Ginnane J err in failing to find legal unreasonableness on the respondent’s part due to her failure to refer the applicant’s case by virtue of the jury empanelment issue. First, it is not apparent from the materials supplied with the applicant’s petition that this issue was raised for the respondent’s consideration. Secondly, even if it had, the point was rejected by Croucher J.[120] Ginnane J determined that ss 15 and 44 of the EO Act did not impose any relevant duty on the respondent, and were not ‘relevant to the [respondent’s] decision on whether to refer the petition to the Court of Appeal’.[121] Ginnane J held that the applicant had failed to show ‘any impropriety or invalidity’ in the empanelling of the jury that convicted him.[122] As his Honour found: ‘There is no requirement that [a] jury consist of any minimum number of either men or women.’[123] Ginnane J’s holding that the respondent had not committed legal unreasonableness in this regard was plainly correct.

Fresh evidence

[120]Croucher J’s reasons, [156].

[121]Ginnane J’s reasons, [87].

[122]Ginnane J’s reasons, [88].

[123]Ginnane J’s reasons, [89].

Ginnane J did not err in failing to find that the respondent had acted unreasonably in the legal sense by failing to refer the applicant’s case to the Court of Appeal because of the fresh evidence issue. The respondent had doubts about the cogency and veracity of the fresh evidence relied on by the applicant. The respondent considered, also, that the failure of the applicant to adduce this evidence at trial had not been adequately explained. But, in short, and as Ginnane J held, the merits of this matter were determined by the Court of Appeal in the applicant’s second or subsequent appeal and found wanting.[124] It was not therefore an instance of legal unreasonableness for the respondent not to refer the applicant’s case on this basis.

Bias and corruption allegations

[124]The second or subsequent appeal reasons, [22](d)–(e), [45]–[49], [51].

That leaves the bias, corruption and incompetence issue. We do not consider that Ginnane J erred in failing to find that the respondent’s decision not to refer the applicant’s case to the Court of Appeal on this basis was legally unreasonable. Quite simply, Ginnane J, like Croucher J before him,[125] found that that ‘[n]o credible evidence was produced in support of the[se] claims’.[126] Ginnane J was correct to so find. No legal unreasonableness was established insofar as this topic was concerned.
[125]Croucher J’s reasons, [251]–[259] (corruption), [360]–[369] (incompetence).
[126]Ginnane J’s reasons, [105].

Conclusion

None of the proposed grounds of appeal relied on by the applicant are demonstrative of error on the part of Ginnane J. We cannot detect any error in the reasoning of Ginnane J even leaving aside the applicant’s proposed grounds of appeal. The decision of Ginnane J is correct. Leave to appeal must therefore be refused.
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[2025] VSCA 1

29 January 2025