Clyne, Peter v Senator the Hon Gareth Evans, Attorney General of the Commonwealth of Australia & Anor [1984] FCA 284
Federal Court of Australia
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- QBY
CATCHWORDS
Administrative Law - Judicial Review - Jurisdiction to review
"decision" of Attorney-General for the Commonwealth in declining
to consider representations whether after committal he should
proceed with a prosecution - whether any duty to do so - exercise
of prerogative - Judiciary Act 1903 s.71 - Director of Public
Prosecutions Act 1983 s.9 - Director of Public Prosecutions
(Consequential Amendments) Act 1983 s.22.
PETER CLYNE v. SENATOR THE HON. GARETH EVANS, ATTORNEY-GENERAL
FOR THE COMMONWEALTH OF AUSTRALIA (First Respondent) AND THE
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA
(Second Respondent).
No. NSW G235 of 1984
CORAM: McGreaqor, Fisher & Neaves JJ.
14 September 1984
Svdney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G235 of 1984
)
GENERAL DIVISION )
On appeal from a single Judge
of the Federal Court of Australia
BETWEEN :
PETER CLYNE
Appellant
AND:
SENATOR THE HON. GARETH EVANS,
ATTORNEY-GENERAL FOR THE
COMMONWEALTH OF AUSTRALIA
First Respondent
AND:
THE DIRECTOR OF PUBLIC
PROSECUTIONS FOR THE
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER
JUDGES MAKING ORDER: McGreqor, Fisher and Neaves JJ.
DATE OF ORDER: 14 September 1984
WHERE MADE: Svdney
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondents' costs.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G235 of 1984
)
GENERAL DIVISION )
On appeal from a single Judge
of the Federal Court of Australia
BETWEEN :
PETER CLYNE
Appellant
AND:
SENATOR THE HON. GARETH EVANS.
ATTORNEY-GENERAL FOR THE
COMMONWEALTH OF AUSTRALIA
First Respondent
AND:
THE DIRECTOR OF PUBLIC
PROSECUTIONS FOR THE
COMMONWEALTH OF AUSTRALIA
Second Respondent
Coram: McGregor, Fisher and Neaves JJ.
Date: 14 September 1984
REASONS FOR JUDGMENT
THE COURT
PETER CLYNE (appellant) has appealed from part of the
judgment of a member of this Court given on 16 July 1984 whereby
his application, brought pursuant to the Administrative Decisions
(Judicial Review) Act 1977 (the Judical Review Act) to review a
decision of SENATOR THE HONOURABLE GARETH EVANS, ATTORNEY-GENERAL
FOR THE COMMONWEALTH OF AUSTRALIA (the Attorney-General), was
dismissed. The said decision was one wherein the
Attorney-General declined to consider the appellant's application
that a certain prosecution should be discontinued. THE DIRECTOR
OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA (The
Director of Public Prosecutions) was Joined as a second
respondent on the original application.
It appears from the Reasons for Judgment of the primary
Judge that in December 1982 an information was laid by an officer
of the Australian Taxation Office, alleging that the appellant
had. contrary to the Banking (Foreign Exchange) Requiations made
a false statement to an officer of the Reserve Bank of Australia.
Committal proceedings in respect of the alleqed offence commenced
before a Stipendiarv Magistrate at the Court of Petty Sessions in
Sydnev on 4 July 1983. and continued thereafter on various days
in dJulv and October and on 25 January 1984. On 26 idem the
appellant was committed for trial.
During the course of the committal proceedings, an
application was made to this Court for review of various
decisions by the learned Magistrate which application was
rejected, the rejection being confirmed on appeal: see Clyne v.
Scott (1983) 52 ALR 405. A further unsuccessful application was
made for review of the decision to commit; see Clyne v. Scott, 28
March 1984 per Sheppard J., unreported.
On 27 January 1984 following committal for trial the
appellant wrote to the Attorney-General stating that he was
preparing submissions in respect of an application that no
indictment should be filed. On 5 March 1984 the Director of
Public Prosecutions Act 1983 came into effect. Mr. Ian Temby of
Queen's Counsel, the first Director, took up his appointment on
that day. On 13 March 1984 the submission letter referred to
was forwarded to the Attorney General. It was supplemented by a
later letter dated 2 April 1984.
on 5 April 1984, at the direction of the
Attornev-General, a letter was written to fhe appellant
acknowledging his of 13 March. [It stated -
"As this matter falls within the statutory
responsibility of the Director of Public
Prosecutions. the Attorney-General has asked me to
refer your request to him for his consideration.
This has been done. You will hear from the
Director in due course."
On 10 April 1984, the Director of Public Prosecutions
wrote to the appellant in respect of his letters of 13 March and
2 April as follows, inter alia -
""T have considered the matters raised in vour
letters but I have concluded that your trial on the
charge against Regulation 42 of the Banking
(Foreign Exchange) Regulations should proceed."
Thereafter the appellant wrote requesting a reference to "the
statutory provisions (if any) whereby a decision whether or not a
nolle prosequi is to be filed no longer falls within the ambit of
decisions that have to be made by the Attorney-General". On 10
May 1984, the Director of Public Prosecutions replied, inter
alia:-
"Since the commencement on 5 March of this year of
the Director of Public Prosecutions Act, 1983, I
have been responsible for matters relating to the
conduct of prosecutions for offences against the
law of the Commonwealth. Pursuant to my functions
under subsection 6(1) of the Act I am carrying on
the prosecution of you for an offence against
Regulation 42 of the Banking (Foreign Exchange)
Regulations and I considered your request that no
Bill of Indictment be signed charging you with that
offence, in accordance with my powers under
subsection 9(4) of the Act.
In relation to the question you have asked in the
sixth paragraph of your letter, I draw your
attention to paragraph 10(1)(d) of the Director of
Public Prosecutions Act. That paragraph provides,
in effect, that my powers and functions under that
Act do not affect the powers of the
Attorney-General under section 71 of the Judiciary
Act. 1903 to decline to proceed further in the
prosecution of a person under commitment upon a
charge of an indictable offence against the laws of
the Commonwealth. However the Attorney-General has
stated to me that he would wish me to determine
nolle prosequi and no bill applications that are
addressed to him. The Attorney-General further
stated that he would consider such applications
addressed to him following an earlier refusal by me
only in exceptional circumstances and only after
consultation with me."
On 17 May 1984 the appellant wrote again to the
Director of Public Prosecutions. in effect, stating that the
Attorney-General retained a duty, pursuant to s.71 of the
Judiciary Act 1903 himself to consider an application that no
bill be filed. Mandamus proceedings were commenced against the
Attorney-General. However, on 4 July 1984, when they were called
on for hearing, the appellant sought and was granted leave to
file ain Court an application pursuant to s.5 of the Judicial
Review Act for anorder of review of the decision of the
Attorney-General. The mandamus proceedings were, it seems, not
pressed before the learned primary Judge who dismissed the
application. The appellant did not appeal against his decision
as to mandamus but sought, when opening this appeal, to file an
amended Notice of Appeal "to keep the question open". This Court
refused his application.
Sections of the Judiciary Act 1903, to which reference
has been made, include -
"69. (1) Indictable offences against the laws
of the Commonwealth shall be prosecuted by
indictment in the name of the Attorney-General of
the Commonwealth or of such other person as the
Governor-General appoints in that behalf.
(2) Any such appointment shall be by commission
in the King's name, and may extend to the whole
Commonwealth or to any State or part of the
Commonwealth.
(3) Any person committed for trial for an
offence against the laws of the Commonwealth may at
any time within fourteen days after committal and
before the jury 15 sworn apply toa Justice in
Chambers or toa Judae of the Supreme Court of a
State for the appointment of counsel for his
defence. If it be found to the sastisfaction of
the Justice or Judge that such person is without
adequate means to provide defence for himself, and
that it is desirable in the interests of justice
that such an appointment should be made, the
Justice or Judge shall certify this to the
Attorney-General, who may if he thinks fit
thereupon cause arrangements to be made for the
defence of the accused person. Upon committal the
person committed shall be supplied with a copy of
this sub-section.
71. When any person 18 under commitment upon a
charge of an indictable offence against the laws of
the Commonwealth, the Attorney-General or such
other person as the Governor-General appoints in
that behalf may decline to proceed further in the
prosecution, and may, 1f the person is in custody,
by warrant under his hand direct the discharge of
the person from custody, and he shall be discharged
accordingly."
The Director of Public Prosecutions (Consequential
Amendments) Act 1983. the relevant provisions of which came into
force on 5 March 1984, amended s.71 by adding at the end thereof
the following sub-section:
""(2) Nothing in sub-section (1) -
(a) affects the power under sub-section 9(4) of
the Director of Public Prosecutions Act 1983
of the Director of Public Prosecutions; or
(b) affects, or shall be taken to have affected,
the power under sub-section 8(2) of the
Special Prosecutors Act 1982 of a Special
Prosecutor."
Sections of the Director of Public Prosecutions Act 1983
mentioned in argument include -
"B. (1) In the performance of the Director's
functions and in the exercise of the Director's
powers, the Director 1s subiect to such directions
or quidelines as the Attorney-General, after
consultation with the Director. gives or furnishes
to the Director by instrument in writing.
(2) Without limiting the generality of
sub-section (1), directions or guidelines under
that sub-section may -
(a) relate to the circumstances in which the
Director should institute or carry on
prosecutions for offences;
(b) (c) vee
(3) Where the Attorney-General gives a
direction or furnishes a guideline under
sub-section (1), he shall -
(a) as soon as" practicable after the time that is
the relevant time in relation to the
instrument containing the direction or
guideline, cause a copy of the instrument to
be published in the "Gazette": and
9. (1) For the purposes of the performance of
his functions, the Director may prosecute by
indictment in his official name indictabie offences
against the laws of the Commonweaith, but nothing
in this sub-section prevents the Director from
prosecuting an offence against a law of the
Commonwealth in any other manner.
(2) Where the Director institutes a prosecution
on indictment for an offence against a law of the
Commonwealth, the indictment shall be signed -
(a) by the Director; or
(b) for and on behalf of the Director, by a person
authorized by the Director, by instrument in
writing, to sign indictments.
(3) For the purposes of the performance of his
tunctions, the Director may take over a prosecution
on indictment for an offence against a law of the
Commonwealth, being a prosecution instituted by
another person (other than the Attorney-General or
a Special Prosecutor).
(4) Where -
(a) a person is under commitment, or has been
indicted, on a charge of an indictable offence
against a law of the Commonwealth: and
(b) the prosecution for the offence was
instituted, has been taken over or is being
carried on by the Director.
the Director may decline to proceed further in the
prosecution and may, 1f the person 183 1n custody,
by warrant signed by the Director, direct the
discharge of the person from custody, and where
guch a direction 1s aiven, the person shall be
discharged accordingly.
10. (1) Nothing in this Act affects -
(a) the power of the Attorney-General, of a person
appointed by the Governor-General or of a
Special Prosecutor to prosecute by indictment
in his own name indictable offences against
the laws of the Commonwealth;
(d) the power under section 71 of the Judiciary
Act 1903 of the Attorney-General or of a
person appointed by the Governor-General;
Counsel in this matter have presented their arguments
orally but supported by written submissions summarising or. in
some instances, developing areas of their argument. Accordingly,
it is not necessary to attempt fully to recapitulate them here.
The appellant's submissions included that s.71 of the
Judiciary Act involved a duty upon the Attorney-General to
consider the application that he should decline to proceed
further in the prosecution: that s.71 is a reproduction of the
common law into statute form: that under the common law the
Attorney-General would have had a duty to consider an application
1f one were made either, after committal, that he should decline
to present an indictment: or, 1f an indictment is signed or
pending, that he should enter a nolle prosequl. He submitted
that the form of s.71 implied that the Attorney-General has a
duty to consider any application by an accused person in that
regard; that it is a statutory duty and that there is a
correlative right in a person under commitment to require him so
to do; that the Attorney-General's declining or refusing to
consider the application was itself a decision, and wrong in law.
He referred to Ex parte Newton (1855) 4E & B 869 (Newton),
particularly at pp.871, 872: Ex parte Costello (1868) I R. 2
C.L. 380 (Costello): Ex parte Blackburn [1956] 1 W.L.R. 1193
(Blackburn): The King v. Commonwealth Court of Conciliation and
Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78
C.L.R. 389 (Ozone): Barton v. The Queen (1980) 147 C.L.R. 75
(Barton): Lamb v. Moss 49 ALR 533. If, as the argument ran,
s.71 is merely an expression of the common law then, said the
appellant, the Attorney-General has a duty which is referable now
to 3.71 of the Judiciary Act. He said the disinclination of the
Attorney-General to deal with the matter was. in effect, a
refusal to do so. In terms of s. 5(1)(4) of the Judicial Review
Act, he submitted that 1t was a decision which was contrary to
law - see s.5(1)(j) of that Act.
Senior counsel for the respondents submitted that s.71
of the Judiciary Act 1903 (as amended) 1s a statutory expression
of the common law prerogative power of the Attorney-General to
decline to proceed further in indictable prosecutions. He
referred to Barton per Gibbs A.C.J. and Mason J. at p.94;
Stephen J. at p.103: per Murphy J. at p.107; per Aickin J. at
p.109; per Wilson J. at p.109; Req. v. Comptroller-General of
Patents C18993 1Q.B. 909 at p.914; London County Council v.
Attorney-General £19023 A.C. 165 at pp.168-169. Neither s.71 nor
the general law impose a correlative duty on the Attorney-General
to consider any application made to him not to proceed further in
10.
an indictable prosecution. A fortiori is this so when the
legislative scheme gives a concurrent power to another authority,
in this case the Director of Public Prosecutions to decline to
proceed further in the prosecution; see s.9(4) of the Director
of Public Prosecutions Act 1983 and s.22 of the Director of
Public Prosecutions (Consequential Amendments) Act 1983. There
1s no express duty to consider any application and there is
nothing in the language of s.71 to cast upon the Attorney-General
any obligation to consider whether to decline to proceed further
in a particular case. The implication of such a duty is made
more difficult by the fact that s.71l applies not only to the
Attorney-General but also to other persons appointed by the
Governor-General in that behalf.
He submitted that the appellant must establish in the
first instance the existence of a decision reviewable under s.5
of the Judicial Review Act. In this case, he said, the decision
of the Attorney-General had been to refer the application to the
Director of Public Prosecutions. This was not a decision made
"under an enactment". It was made pursuant to ae policy.
Alternatively, if what the Attorney-General did constituted a
decision made "under an enactment" (1.e. under s.71), it was not
made in contravention of any ground specified in s.5(1) of the
Judicial Review Act.
Finally, he said there was no call for the Court at
first aimstance, or this Court, to exercise its discretion to
ll.
review the matter. given that the Director of Public Prosecutions
has considered the appellant's application; nor had the
appellant made any subsequent application to the Attorney-General
in accordance with the policy expressed in the Director of Public
Prosecution's letter of 10 May 1984. He referred to Lamb v. Moss
(supra); Sankey v. Whitlam (1979-80) 142 C.L.R. 1 at p.26. The
primary Judge, he submitted, had made no error of law in
declining to exercise his discretion to review the decision in
all the circumstances of this case.
First it will be convenient to make reference to the
authorities to which the appellant referred.
Newton concerned a motion for a rule nisi to order the
Attorney-General to issue his fiat for a writ of error ina case
in which the applicant had been convicted at the Central Criminal
Court onan indictment for an assault. The Attorney-General,
having heard the application, had refused the fiat. It was held
that the Court had no jurisdiction to review that decision. The
appellant, however, relied on passages in the iudgments of Lord
Campbell C.J. and Earle J. The former at p.871, and referring
to the Attorney-General, said -
"If he refused to hear and consider the application
for a fiat, we should compel him by mandamus to
hear and consider it: but when he has heard and
considered, and refused, we cannot interfere. The
Attorney-General may be made responsible in
Parliament."
Earle J. at p.872 said -
12.
"I think the duty cast by the law on the person
filling the office of Attorney-General is to
consider and decide in each case whether the fiat
ought to be granted."
Costello was a case in which an application had been
made under a_ statutory provision providing for an application to
be made to the Attorney-General for a fiat for a writ of error.
The application had been refused and, although 1t was argued that
the Attorney-General had a duty to entertain the application, the
Court left that question open.
lackburn concerned an application for a certificate
which would have entitled the applicant to appeal to the House of
Lords. When this was refused the applicant sought mandamus to
compel the Attorney-General to issue the certificate. In
refusing the application Singleton L.J.. with whom Morris and
Romer L.JdJ. agreed, said at p.1195 -
"I feel that no one would doubt that when there is
an application, by a person who has been convicted
and whose appeal against conviction has been
dismissed by the Court of Criminal Appeal, fora
certificate from the Attorney-General under that
subsection, 1t 18 the duty of the Attorney-General
to consider the application. Parliament entrusted
the granting of or the refusal of a certificate
under that subsection to the Attorney-General, and,
of course, he would consider 1t, and consider 1t in
view of the terms of the subsection."
and at p.1197 -
"I assume. for this purpose, that there 1s, or
would be ina proper case, a right to an order of
mandamus against the Attorney-General if he refused
to consider an application pr>2perly made under
section 1(6) of the Act of 1907. I assume it
without deciding the matter."
Later he said, ibid -
13.
"The real point in this case is, as it seems to me,
that the applicant is seeking to reopen his
original application, and he is asking the
Attorney-General to consider either the old
application or a new application in precisely the
same terms, or based upon the same reasons. I am
wholly satisfied it would not be right for this
Court to consider directing the Attorney-General to
reconsider a matter which he has already
considered:...."
We consider that the statements upon which the appellant
relied in Newton, Costello and Blackburn were made in the context
of the circumstances which the Court was then considering. They
were not concerned with putting an end to a prosecution. Those
cases dealt with the exercise of a power to grant a fiat fora
writ of error or a certificate enabling the person aggrieved to
exercise a legal right expressly conferred upon him by statute, a
right that was exerciseable by him subject only to obtaining the
fiat of the Attorney-General or a certificate. The passages
cited were obiter;: but attributing some persuasive force to
them, the cases are clearly distinguishable from that at present
under consideration. This is particularly so because of the
legal right, referred to in those cases, conferred on the person
aggrieved once the fiat or certificate was granted. If the
Attorney-General did not in such circumstances consider the
application for a fiat or certificate the legal right of the
applicant to proceed upon a writ of error or to appeal would have
been frustrated. Here no legal right of any kind is conferred on
the appellant, either absolutely or subject to the intervention
of the Attorney-General, to have the prosecution proceed no
further.
14.
We agree, with respect, that the Attorney-General in
England could exercise a discretion to decline to proceed further
upon a prosecution or to bring it to an end after an indictment
had been signed. We do not stay to consider whether the entering
of a nolle prosequi put an end to the prosecution forever; or
whether later there could have been a fresh prosecution on the
same charge; see Goddard v. Smith (1704) 6 Mod.261 per Powell J.
at p.262: The Law Officers of the Crown (Edwards) p.229. But
what was conferred on the Attorney-General was an unfettered
discretion, the exercise of which could not be compelled by an
accused, though the Attorney-General may have had to answer to
Parliament for the manner of its exercise; see The Law Officers
of the Crown at p.227 where the author says -
"Another case in which the Attorney-General 15
pre-eminent 1s the power to enter a nolle prosequi
in a criminal case.....the Attorney-General alone
has power to enter a nolle prosequi, and that power
is not subject to any control."
The first instance of the exercise of the power was in
the sixteenth century in the reian of Charles II: see per Holt
C.J. in Goddard v. Smith (supra) at pp.261-262. In the exercise
of his discretion he acted as "representative of the Crown" per
Cockburn C.J. in R. v. Allen (1862) 1B & 5 850 at p.854. In
that case, as reported in 9 Cox C.C. 120. indictments had been
moved into the Court of Queen's Bench by certiorari: but when a
rule was applied for that the defendant come in and plead, it was
discovered he had not entered into any recognizances, and that
the Attorney-General had entered a nolle prosequi. Cockburn C.J.
15.
said to counsel who supported the application -
"Upon what ground do you ask us to interfere with
the undoubted right of the Attorney-General to
enter a nolle prosequi?"
to which counsel replied -
"Upon the ground that the Attorney-General has
acted on an ex parte application. The
Attorney-General has no power to enter a nolle
prosequi without calling before him and hearing all
the parties."
Blackburn: J. said -
"It will be difficult to show that this Court has
power to interfere with the prerogative right of
the Crown as exercised by the Attorney-General."
The court was unanimous in refusing the application. At p.122,
Crompton J., at the end of a very short judgment said -
"I think the Attorney-General can interfere in any
public prosecution whenever he pleases, and all the
'cases referred to are clearly distinguishable from
such an one as this."
Thereafter, Blackburn J. said -
"IT am of the same opinioh. This particular branch
of the Prerogative 1s entrusted to the
Attorney-General who, on his own responsibility,
determines whether the prosecution shall go on or
not."
The unfettered nature of the power to enter a nolle
prosequi also receives support inR. v. Comptroller-General of
Patents C1899} 1 Q.B. 909 per A.L. Smith L.J. at p.914;
speech of Viscount Dilhorne in Gouriet v. Union of Post Office
Workers £19781 A.C. 435 at pp.487-488.
We may mow turn to the Australian authorities to which
reference was made.
16.
hee
In Ozone the question at issue concerned a refusal by
the Commonwealth Court of Conciliation and Arbitration to
consider an application for an order altering the basic wage
applying in certain States to the industry concerned. The High
Court was asked to grant a writ of mandamus addressed to that
Court commanding it to hear the application. The Court said at
pp.398-399 -
"Apart, however, from this 1mperative requirement,
what s.25 does is to create a jurisdiction in the
court, and where such a jurisdiction is created for
the public benefit or for the purpose of conferring
rights or benefits upon persons the court upon an
application properly made is under a duty to
exercise its jurisdiction and 1s not at liberty to
refuse to deal with the matter: Rv. The Tithe
Commissioner for England and Wales (In the Matter
of Great Hale Tithes) ((1849) 14 Q.B. 459); Julius
v. The Right Rev. The Lord Bishop of Oxford (1880)
5 App. Cas.214). Where a court or a public officer
wrongly refuses jurisdiction the exercise of the
jurisdiction can be commanded by a writ of
mandamus. The writ may 1ssue whenever there 1s a
specific legal right to require the performance of
a statutory duty, and no specific leqal remedy 1s
provided for enforcing that right: Rv. The
Commissioners of Inland Revenue; In re Nathan
((1884) 12 Q.B.D. 461). The writ goes only in
order to compel the performance of a_ public duty
and, in the case of a court or other body which is
under a duty to hear and determine a matter, the
tenor of the writ will require the hearing and
determination of the matter, and not the decision
of the matter in any particular manner. The
Arbitration Court in determining a dispute is not
exercising a judicial power, but 1t 1s performing a
public duty imposed upon 1t by statute."
That case, therefore, was concerned with a legal duty imposed by
statute; the Arbitration Court had refused jurisdiction: it was
17.
required to exercise that jurisdiction. There is no parallel in
the case before us.
In Barton v. The Queen (1980) 147 C.L.R. 75 it was held
that a decision of the Attorney-General for New South Wales under
s.5 of the Australian Courts Act 1828 to present an ex officio
indictment 1s not examinable by the courts. At pp.90-91 in the
judgment of Gibbs A.C.J., as he then was. and Mason J., it was
said -
"The decisions in Prosser and in the later case of
Req. v. Allen (1862) 1 B&S 850 that the courts
cannot review the Attorney-General's exercise of
the prerogative power to enter or refuse a nolle
prosequ1, are in conformity with the principle that
the courts cannot examine the exercise by the
Attorney-General of his common law power to grant
or refuse a fiat in connection witha relator
action. (London County Council v. Attorney-General
(€19027 A.C. 165, at pp.168-169,170)); Gouriet v.
Union of Post Office Workers (£1978) A.C. 435, at
p.488); Reg. v. Labouchere ((1884) 12 Q.B.D. 320)."
Referring to s.5 of the Australian Courts Act, they said at
p.94:-
"The provision made by s.5 1s very different from
an ordinary administrative discretion conferred by
statute. The section 1s a self-contained provision
the scope of which 1s unaffected by other
provisions in the statute. It imposes no duty on
the Attorney-General to consider whether a
prosecution shall be instituted. All that the
relevant part of the section does is to indicate
the mode in which a criminal prosecution shall be
instituted, i.e. by information in the name of the
Attorney-General or other officer duly appointed
for the purpose. The provision does not limit or
restrict the Attorney-General in any way in the
consideration which he may give to a particular
case. And because the lanquage leaves' the
Attorney-General at large in deciding what course
he shall take, 1t makes his decision immune from
judicial review."
18.
And later -
"All this indicates that Parliament intended to
give the Attorney-General for the Colony the
unexaminable discretion possessed by the
Attorney-General in England acting on behalf of the
Crown."
In our opinion Barton reinforces the extent of the
authority and freedom from compulsion vested by the common law in
the Attorney-General as "a representative of the Crown" when
exercising powers such as those conferred by ss.69 and 71 of the
Judiciary Act. As was said in Barton by Gibb A.C.J. and Mason J.
at p.90, speaking of the conclusion in Req. v Prosser (1848) 11
Beav.306 that the prerogative power to enter a nolle prosequi was
not subject to judicial review -
".,,there is no reason to doubt that the conclusion
rests on the general principle that a prerogative
power was not examinable by the courts."
These extracts cannot determine the matter conclusively
against the appellant but they highlight the difficulty in
finding in the statute a relevant "duty" imposed upon the
Attorney-General.
In our opinion it 1s not possible to discern in s.7la
legally enforceable duty in the Attorney-General to receive and
consider representations made by or on behalf of a person
committed for trial that no further proceedings be taken against
him. It follows that the section confers no right on an accused
19.
person to require the exercise of the power conferred by the
section upon the Attorney-General.
It was conceded by the appellant that the language of
the section does not expressly impose sucha duty on the
Attorney-General or confer such a right on a person committed for
trial. Both the duty and the right were said to arise by
implication, the foundation of that implication being the duty
which, it was argued, the common law imposed on the
Attorney-General. The statute was said to reinforce the common
law and should be read as importing that duty. It was also said
that, the statutory provision being for the benefit of a limited
class of persons, viz. those committed for trial upon a charge of
an indictable offence against a law of the Commonwealth, 1t
should be considered as conferring on that limited class a right
to make application to the Attorney-General and to insist upon
the performance of the duty that was said to be imposed upon him.
It may well be that s.71 of the Judiciary Act, like s.5
of the Australian Courts Act considered in Barton. 1s to be
construed against the background of the vorerogative and common
law powers of the Attorney-General. But so to construe it
provides no support to the appellant's arqument that the
Attorney-General is under a legally enforceable duty to consider
an application by a person committed for trial that no further
proceedings be taken against him. The authorities upon which the
appellant founded his argument, and which have been examined
20.
above, will not sustain the proposition which the appellant
sought to draw from them. They do not establish that at common
law the courts would intervene to require the Attorney-General to
consider whether a prosecution should be brought to an end.
Indeed, as the examination of the authorities which we have made
discloses, the circumstances in which the courts would intervene
depended upon the establishment of a legally enforceable right in
the applicant. It is the absence from the statute of any such
legally enforceable right in the appellant in this case which is
decisive of the question which now arises for decision. Apart
altogether from this difficulty, it 1s also to be borne in mind
that -
"Tt is astronq thing to read into an Act of
Parliament words which are not there, and in the
absence of clear necessity it is a wrong thing to
fo."
See per Lord Mersey in Thompson v. Gonld & Co. £19103 A.7. 409 at
p.420.
We should add that the question whether, in the event of
the Attorney-General making a decision whether or not to accede
to representations made to him that a vrosecution should not
proceed further, that exercise of power involves a decision which
is reviewable under the Judicial Review Act does not arise in the
present proceedings and we express no opinion upon it.
In our opinion the appeal should be dismissed with
costs.
CATCHWORDS
ADMINISTRATIVE LAW - Judicial Review - Appointment of Counsel
and Solicitors for defence of indicted person under Judiciary Act
1903 s.69(3) - meaning of "cause arrangements to be made".
No.G39 of 1985
B.J. MAHER v. ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Administrative Decisions (Judicial Review) Act 1975; s.5,
Judiciary Act 1903; 5.69.
Gollin v. Karenlee Nominees (1983) 49 A.L.R. 135
Local Government Board v. Arlidge £19153 A.C. 120
Re Matthew Forrest £19123 V.L.R. 466
R. v. Sowden £1964] 1 W.L.R.1454
Stiles v. Galinski £19043 1 K.B. 615
Coram: Spender J.
Brisbane
24 May, 1985. v