Sica v Attorney-General for the State of Queensland

In this interesting application, Justice Burns dismissed an application for a statutory order for review of a decision by the Attorney-General (Qld) not to refer the applicant’s appeal against his convictions for three counts of murder to the Court of Appeal. Justice Burns confirmed that the exercise of the power conferred on the Attorney-General by s 672A Criminal Code 1899 not to refer the applicant’s case to the Court of Appeal is not a decision which is subject to judicial review under the Judicial Review Act 1991.

Burns J

26 November 2021

Background

This was an application for a statutory order for review of a decision by the Governor-General not to refer the applicant’s case to the Court of Appeal. The applicant was convicted on 3 July 2012 of three counts of murder. [1]. His subsequent appeal to the Court of Appeal was unsuccessful. In April 2019, he petitioned the Governor of Queensland for a pardon in relation to each of his convictions or, alternatively, he requested the Attorney-General (Qld) to refer his convictions to the Court of Appeal pursuant to s 672A Criminal Code 1899. [2]. His petition was declined. In January 2021, he applied for a statutory order for review of the decision not to refer his case to the Court of Appeal. [ 3].

The Attorney-General filed an application for an order pursuant to s 48(1)(a) Judicial Review Act 1991 (“JR Act”) dismissing Mr Sica’s application on the sole ground that it was inappropriate to allow the proceeding to continue. The Attorney-General’s application relied on three arguments: that Mr Sica did not have standing to bring his application; that the decision of the Attorney-General not to refer his case to the Court of Appeal was a decision to which Pt 3 of the JR Act applied; and that, in any event, the application was bound to fail. [4].

In the course of the hearing, Mr Sica was granted leave to amend his application to seek prerogative orders quashing the decision of the Attorney-General not to refer his case to the Court of Appeal and requiring her to consider Mr Sica’s request “according to law”. [5].

The first issue was whether Mr Sica had standing to apply. Justice Burns held that Mr Sica did not have standing. As the Court in Holzinger v Attorney-General (2020) 5 QR 314 explained the decision of the Attorney-General not to refer Mr Sica’s case to the Court of Appeal is not a decision to which Pt 3 of the JR Act applies. This is because a decision not to refer a case to the Court of Appeal under s 672A Criminal Code 1899 does not “confer, alter or otherwise affect legal rights or obligations but, rather, they invoke the jurisdiction of a court to vindicate pre-existing rights and liabilities”. [10].

The second issue was whether the any of the grounds relied upon by Mr Sica were capable of obtaining a grant of relief under Pt 5 of the JR Act. [12]. This issue arose because Mr Sica’s amended application expanded the relief sought to include a claim for orders in the nature of certiorari and mandamus. [12]. However, Mr Sica encountered the same difficulties with his claim for relief under Pt 3 because he was “not someone who is ‘adversely affected’ by the decision of the Attorney-General not to refer his case to the Court of Appeal”. [14].  Therefore, Mr Sica did not have standing to make an application under Pt 5 of the JR Act.

Mr Sica encountered further difficulty with the claim for an order quashing the decision of the Attorney-General. As the decision not to refer Mr Sica’s case to the Court of Appeal pursuant to s 672A Criminal Code 1899 did not have any “discernible or apparent legal effect upon rights” certiorari was not available. Further, mandamus was not available either because to the extent the Attorney-General had a duty to consider the petition and decide whether to refer the case to the Court of Appeal that duty had been discharged. [15].

His Honour was also not persuaded that the argument that the decision was affected by bad faith. While his Honour was not persuaded that there may be a “bad faith exception” to the proposition that the exercise of the power in s 672A Criminal Code 1899 is not judicially reviewable as the Attorney-General’s application was for summary dismissal of Mr Sica’s case he was prepared to consider the applicant’s case at its highest. [20]. Nonetheless, on the basis of the particulars advanced by Mr Sica, his Honour found that even if there is a bad faith exception the particulars of this case did not support that allegation.

Ed.