Osland v Dept of Justice

Osland v Dept of Justice - [2005] VCAT 1648 - VCAT 2005 case summary — Zoe

[15]

9 At the time of the State election in 1999 the petition for mercy was still being considered by the then Attorney-General, the Honourable Jan Wade MP. By that time Document 1 had been created, being a memorandum of legal advice dated 17 August 1999 from the Victorian Government Solicitor to the Attorney-General ("the first VGS advice").

10 Following the election, and the appointment of a new Attorney-General (the Honourable Rob Hulls MP), Document 2 was created. This is a memorandum of advice from Mr W H Morgan-Paylor QC and Mr Boris Kayser, both Crown prosecutors, to the Director of Public Prosecutions. This document ("the Crown prosecutors' advice") is dated 2 December 1999, and provides advice that the applicant's petition be rejected. It transpired, on the eve of the present hearing, that the applicant had already received a copy of the Crown prosecutors' advice; and, as a result, the respondent no longer maintained that this document was an exempt document. However, as it is relevant to the public interest issue, I make the following inference: namely that the Department of Justice, or someone with authority within the department, provided a copy of the Crown prosecutors' advice to the applicant's representatives sometime before 28 June 2000.[3]

11 Following the preparation of the Crown prosecutors' advice, Document 3 was created: this is a memorandum of advice, dated 8 December 1999, from the Victorian Government Solicitor to the Attorney-General ("the second VGS advice"). This memorandum provided further advice to the Attorney-General in relation to the petition and made a recommendation in the light of the advice received from the Crown prosecutors.

12 Document 4 is a memorandum of advice dated 22 February 2000 from the then Acting Director of Legal Policy to the Attorney-General and the Deputy Secretary, Legal, of the department. This document, which is in the form of a short briefing note, also contains a hand written notation by the Attorney-General.

13 Document 5 is a memorandum of advice from the then Director of Legal Policy to the Attorney-General, the Secretary to the department and the Deputy Secretary, Legal, of the department. This memorandum includes a summary of the legal advice which had been obtained at the time of that memorandum. Although this memorandum made certain recommendations, it would appear that no final decision was made as a result of these recommendations.

14 On 9 May 2000 a meeting was held between, among others, the Attorney-General, former Premier Joan Kirner, and representatives of the applicant. During that meeting the Attorney-General stated that an opinion would be obtained from senior counsel on the merits of the petition. The name Robert Redlich QC was mentioned as a member of counsel who may be engaged to provide the advice. Document 6, which is a memorandum dated 10 May 2000 from the Director of the Legal Policy Unit of the department to the Attorney-General and Deputy Secretary, Legal, of the department, sets out issues upon which the opinion from senior counsel was to be obtained.

15 Document 7 is a letter dated 25 August 2000 and a lengthy and detailed memorandum of advice of the same date prepared by Robert Redlich QC and a junior barrister. The memorandum contains very detailed advice in relation to the petition and includes a number of annexures. I propose to refer to Document 7 as "the Redlich advice".[4]

16 On 6 December 2000 Document 8 was created. This is a memorandum of advice from the then Director of Legal Policy to the Attorney-General and the Acting Deputy Secretary, Legal, of the department. This memorandum summarises the Redlich advice and sets out options available to the Attorney-General in the light of that advice.

17 After Document 8 was prepared discussions were held between the Attorney-General and the Premier. Following these discussions the Attorney-General requested his department to obtain a further joint advice from three senior counsel. The senior counsel asked to give that advice were Ms Susan Crennan QC, Mr Jack Rush QC and Mr Paul Holdenson QC. Document 9, which is dated 3 September 2001, is a memorandum of joint advice from these three barristers ("the joint advice"). The joint advice is a comprehensive memorandum which canvasses essentially the same issues as those canvassed in the Redlich advice.

18 After receipt of the joint advice the department prepared Document 10. This is a memorandum dated 5 September 2001 from the Director of Legal Policy to the Deputy Secretary, Legal and Equity and the Attorney-General in which it is recommended that a letter be signed recommending that the petition be denied. A copy of this memorandum has already been released. Three draft letters were attached to this memorandum, generally giving effect to the recommendation in the memorandum. The applicant no longer pursues her request in relation to these draft letters.

19 Document 11 is a copy of a letter of advice which is undated and which was sent from the Attorney-General to the Premier in relation to the applicant's petition of mercy. This letter enclosed a draft letter of advice from the Premier to the Governor and a draft letter of advice from the Governor to Mrs Osland.

20 On 6 September 2001 the Attorney-General announced that the Governor had denied the applicant's petition of mercy. In a press release issued that day the Attorney-General said:

[22]

22 A petition for the exercise of the prerogative of mercy is a request made to the Crown by an individual seeking release from the effects of a conviction in circumstances where all avenues of appeal to the courts have been exhausted or where the courts have no jurisdiction. The Governor of Victoria has the power to exercise the prerogative of mercy as a representative of Her Majesty the Queen. The power derives from section 7 of the Australia Act 1986 (Commonwealth) which provides that the powers and functions of the Queen in respect of a State are exercisable only by the Governor of the State (subject to exceptions which are not presently relevant). Section 7(5) of that Act provides that advice to the Queen (and her representative) in relation to the exercise of the powers and functions of the Queen in respect of a State shall be tendered by the Premier of the State.

23 On 14 February 1986 the Queen issued Letters Patent relating to the Office of the Governor of Victoria. Clause III of the Letters Patent states, among other things, that the Premier shall tender advice to the Governor in relation to the exercise of powers and functions of the Governor not permitted or required to be exercised in Council. By convention, the accepted practice is and has been that the Premier seeks the advice of the Attorney-General in relation to whether the prerogative should be exercised. In turn, when the advice of the Attorney-General is sought, it is practice for the Attorney-General to ask his or her department to consider, evaluate and make recommendations in relation to the petition. Sometimes the advice of the Victorian Government Solicitor is sought. To the extent that a petition of mercy raises non-legal grounds (for example, compassionate grounds, meritorious conduct grounds, or other special grounds) the assessment of the petition on those other grounds is usually conducted within the department. Clearly enough, though, there will often be an overlap between what might be described as legal grounds and what might be described as non-legal grounds.

24 Before tendering his advice to the Premier, the Attorney-General may wish to follow up the advice he or she has received in relation to the matter. Generally the Attorney-General advises the Premier and it is then a matter for the Premier to proffer advice to the Governor. On rare occasions the Attorney-General's advice may be considered by Cabinet before the Premier makes a recommendation to the Governor. However this did not apply in the present case.

25 In 1908 the High Court held in Horwitz v Connor[5] that no court has jurisdiction to review the discretion of a governor in the exercise of the prerogative of mercy. It would appear that this is still the law in Australia.[6] The position in other common law jurisdictions based upon the Westminster system may well be different. In Lewis v Attorney-General of Jamaica[7] the Privy Council held that, although there was no legal right to mercy and the merits of the decision of a governor in relation to the exercise of the prerogative of mercy were not reviewable by a court, the prerogative should be exercised by procedures which were fair and proper and amenable to judicial review. This decision appears to have been influenced by the fact that Jamaica had entered into certain international obligations in respect of human rights. The decision in Lewis was made in the context of a prisoner facing the death penalty. This might be thought to be relevant. It is possible, in the light of the Privy Council decision in Lewis, that the High Court may be asked to revisit the issue. However for present purposes I must proceed on the basis that the exercise of the prerogative of mercy (including the procedures used in considering a petition seeking mercy) is not subject to judicial review. This conclusion does not directly impact upon the matters before the tribunal, but has some relevance to questions of public interest, which must be considered by the tribunal.

[23]

26 On 22 April 1999 the Herald Sun newspaper reported that the Chief Justice of the Supreme Court of Victoria, John Harber Phillips, had called for law reform relating to "battered women's syndrome" after the applicant had failed in her appeal to the High Court. The Chief Justice was reported as stating that the laws of self defence and provocation had developed from "male perceptions and experience" and may not take into account what has come to be known as "battered women's syndrome". In June 1999 the Victorian Law Institute Journal reported a speech given by the Chief Justice at the inaugural Lesbia Harford Oration in which the same theme had been advanced.[8] In making these statements the Chief Justice was not alone. There was also a significant level of public concern about, not only the state of the law, but also whether justice had been done in the applicant's case. This public concern manifested itself in numerous articles in the press, many of which had been exhibited to the statement of evidence given to the tribunal by Christa Momot. It is not for the tribunal to comment as to whether this public concern was warranted, either generally or in the applicant's case; but the fact there was public concern is relevant. Significantly the concern was directed at whether, in the applicant's case and in cases of a similar nature, justice was, or was likely to be, done. This was not a case, like many others that find their way into newspapers, which simply interested the public, for example because particular conduct was salacious, weird, outrageous or wicked.

27 Another significant development, that must be at least partly attributable to the Osland case, is a reference made by the Attorney-General to the Victorian Law Reform Commission in relation to defences to homicide. This reference, which was made on 21 September 2001 (about a fortnight after the Attorney-General announced that the applicant's petition of mercy would be refused) required consideration of defences to homicide, particularly in the context of violence against women. Subsequently the Victorian Law Reform Commission published an options paper and then a final report. It is clear that the final report picks up many of the concerns that had been expressed by the Chief Justice in 1999. The decisions made by various courts in relation to the applicant also figured significantly in the report, with the name "Osland" being mentioned over a dozen times. It is true, as Mr Dreyfus QC pointed out, that this was a natural consequence of the fact that the High Court (Australia's highest court) had recently dealt with the applicant's case. Further, it is true that only one of the references to Mrs Osland was in the context of the petition of mercy. But the report, and the recommendations made in the report, demonstrate that there is a genuine community concern about the justness of existing laws in relation to homicide, particularly homicide committed by women who are themselves subject to domestic violence. It does not follow automatically that this concern is relevant to the applicant's circumstances. However, on the basis of information currently available to the community, some members of the public might reach that conclusion.

[28]

Hence, it was said, a petition of mercy does not concern legal rights; and that any advice given by the Victorian Government Solicitor or contained in the Redlich advice or in the joint advice would not be legal advice.

33 In my opinion, the applicant's argument is flawed. In the first place it is impossible to disentangle matters of compassion from matters concerning the legal process. Indeed, the primary arguments raised by the applicant in, and in support of, her petition were to the effect that the legal process did not operate justly in her case. Second, although a petition of mercy is not to be decided by reference to legal rights, it is nonetheless a decision that affects legal rights: indeed it affects a fundamental legal right, the right to liberty. Thus it is entirely appropriate that advice be sought from lawyers: not only in relation to legal issues about process, but also about questions of justice. An examination of the documents demonstrates that the advice which was given was directed at legal issues (both matters of legal process and matters of justice) or was a summary of that advice. Further, the VGS advices, the Redlich advice and the joint advice are all documents that were produced in circumstances where the dominant purpose of the author was to provide legal advice.[15] Documents 5, 6 and 8 are documents which contain summaries of the advice provided by the Victorian Government Solicitor and counsel. Document 4 is possibly in a different category in that it contains advice on legal policy issues and does not contain direct advice or a summary of advice concerning the applicant. However this document is still covered by legal professional privilege: as I have indicated, legal advice does not lose that character simply because it is about a matter of law reform or legal policy.

34 The applicant also submitted that, even if the joint advice was once subject to legal professional privilege, it was no longer privileged because the Attorney-General had waived the privilege. The applicant referred to the Attorney-General's press release and said that the Attorney had revealed to the world not only the fact of the advice, but also the essence of the advice. In support of this contention the applicant relied upon the decision of the High Court in Mann v Carnell[16] where the court observed that legal professional privilege would be waived if there was conduct by the client (for whom the privilege exists) which was inconsistent with the maintenance of the confidentiality of that advice.

35 There have been some differences of opinion about the relevance of waiver in the context of provisions such as section 32 of the Act. These differences are summarised in the annotations to section 32 of the Act in Kyrou and Pizer's Victorian Administrative Law. For my part, for the reasons given by the authors, a document will not be exempt pursuant to section 32 if a client has waived the legal professional privilege.

36 However a statement by a client to the effect that legal advice had been obtained or had been obtained from a particular lawyer or that the advice was to a certain effect does not amount to a waiver of privilege in relation to the detailed content of the advice or the reasoning used in the advice. A client is entitled to say "I have written legal advice from X which says Y" without revealing the document containing the advice or revealing the reasons which might have led X to so advise.

37 This issue has arisen in a number of cases before the tribunal and its predecessor and similar conclusions have been reached.[17] Another example is Bennett v Chief Executive Officer of the Australian Customs Service[18], a case which arose under the Commonwealth Freedom of Information Act 1982, where Madgwick J held that there was no waiver of legal professional privilege because information about the legal advice did no more than state the conclusion from, or logical result of, the legal advice. He added:

[41]

43 It is convenient to start the balancing process by making some observations about the importance of maintaining legal professional privilege generally. The High Court has recently observed that legal professional privilege is a common law right and, in fact, a fundamental human or civil right.[26] And in an early freedom of information case Judge Rowlands, then President of the Administrative Appeals Tribunal of Victoria, accepted that the maintenance of legal professional privilege is a matter of public interest of a high order.[27] But, as Judge Rowlands also noted, this fact does not absolve a document subject to legal professional privilege from the balancing process where public interest considerations might require disclosure.

44 In my opinion, the nature and strength of the factors that warrant the non-disclosure of a document on the ground of legal professional privilege will vary from case to case. Although the maintenance of legal professional privilege will generally be a public interest of high order (and will also involve important matters of private interest), the strength of those interests will be greater in some cases than others. For example, maintaining the privilege in relation to a document containing legal advice which is no longer relevant to the decision making process, but is of historical interest, is likely to be less important than maintaining that privilege in relation to a document under active consideration. Thus in the balancing process it is necessary to consider the documents the subject of the privilege individually, and not generically as "section 32 documents".

45 In the present case the documents in question[28] contain legal advice (or summaries of legal advice) from senior lawyers. The client is (effectively) the Attorney-General, the first law officer. The subject matter is the possible exercise of an executive discretion. All these factors are relevant to the importance of maintaining legal professional privilege. But they do cut both ways. High level decisions should be assisted by confidential advice; but high level decisions are the type of decisions that should be open to public scrutiny.

46 In my opinion it is significant that the documents do not contain advice that is likely to be directly relevant to any future government decision. At most access to the documents would enable discussion of the merits of the Government's decision to refuse to grant the petition. In that sense, the documents could be properly characterised as historical documents.

47 However I am persuaded that it would be undesirable if the effect of providing access to the documents in this case would be to create a precedent whereby legal advice in relation to future petitions of mercy would be, or would be expected to be, available under freedom of legislation laws.

[42]

48 As a general proposition it can be said that there is a public interest in information being freely available to enable members of the public to intelligently consider and discuss decisions of the executive branch of government. Democracy demands no less. In this respect, there is no reason to distinguish between decisions which are made by the executive branch of government pursuant to statute and decisions which are made pursuant to prerogative powers. Such a distinction may be relevant in the context of the availability of judicial review, but democratic values and imperatives will apply to both types of decisions. It is true that a decision to grant or refuse a pardon is of a different character to a judicial decision to convict or imprison a person. One difference is that the former does not require the provision of reasons. But both types of decision affect a basic human right; and, in current times, principles about the transparency required of the judicial process have some application to this type of executive decision making.[29]

49 There is a particular public interest in relation to the operation of the criminal justice system. Public confidence in the system is likely to be enhanced if decisions, which affect legal rights, are made in a transparent manner. The exercise of the prerogative of mercy - or the grant of a pardon - in circumstances which are not transparent or beyond question have the potential to undermine public confidence in the justice system. Two American examples illustrate the point. The first is the pardon of President Nixon by his successor President Ford. The second is the pardon offered by President Clinton, in the dying days of his administration, to Marc Rich.

50 Further, the Osland case is clearly a unique case: not in the sense that it is on its own in a factual sense, but because of the publicity and concern it generated. I have outlined the reaction to the Osland case in more detail earlier in this decision. Those facts favour the revelation of the circumstances surrounding the refusal of the petition of mercy. Many members of the public wish to know whether justice was done in the Osland case, including in the consideration of the petition of mercy. Indeed, the fact that the Attorney-General issued a press release in relation to the Osland case is a sign that he regarded the decision as a matter that concerned the public interest. It is rare for a press release to be issued in relation to a decision to grant or deny a petition of mercy.

51 A further factor which I regard as particularly relevant is that in his press release the Attorney-General specifically referred to the fact that he had obtained the advice from three members of senior counsel; he named those counsel; and he stated that the joint advice recommended, on every ground, that the petition should be denied. The reason why the Attorney-General took this course seems clear enough. He wished to demonstrate to the public that the petition of mercy had been taken seriously and that the Government had taken high level advice before recommending that the petition be denied. Further, by naming the counsel and stating that the joint advice recommended on every ground that the petition should be denied, the Attorney-General was seeking to rely upon the reputation of the senior counsel to support the reasonableness of the Government's decision. I find that this was totally legitimate.

52 However in circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.

53 In my opinion, there are powerful reasons why the conclusions contained in the VGS advices and the Redlich advice should be make available to the public. It is only if these conclusions are publicly available that citizens will be in a position to put these conclusions beside the conclusions in the joint advice; and to assess the merits of the Government's decision to deny the petition of mercy. However the provision of access to just the conclusions contained in the VGS advice and the Redlich advice is likely to raise even more questions about the consideration of the petition of mercy, without answers. Are the reasons given in the joint advice more cogent than the reasons given in the Redlich advice? Was the same information available to each advisor? And so on. In order to clear the air and properly inform the public it would be necessary for the whole of these documents, not just the conclusions, to be made available.

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Osland v Dept of Justice (General) [2005] VCAT 1648 (16 August 2005)

Parties

Cases Cited (10)