Pepper v A-G

SUPREME COURT OF QUEENSLAND

CITATION: Pepper v A-G (Qld) [No 2] [2008] QCA 207

PARTIES: NOEL JOSEPH PEPPER (applicant/respondent) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent/appellant)

FILE NO/S: Appeal No 1421 of 2008 / SC No 9966 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 29 July 2008

DELIVERED AT: Brisbane

HEARING DATE: 16 July 2008

JUDGES: de Jersey CJ, Muir JA and Fraser JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal allowedOrders made by the primary judge on 12 February 2008 be set asideRespondent pay the appellant’s costs of and incidental to this appeal and of the hearing at first instance on 12 February 2008

CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTEPRETATION – RULES OF CONSTRUCTION – GENERALLY – where the respondent was convicted in June 2000 of one count of maintaining a relationship of a sexual nature with a child under 12 in his care, one count of rape and three counts of indecent treatment of a child under the age of 12 in his care – where the respondent in October 2005 petitioned to the Governor for a pardon – where the appellant decided not to refer the respondent’s case to the Court of Appeal for consideration pursuant to s 672A Criminal Code 1899 (Qld) – where the respondent made an application for an order pursuant to s 39 Judicial Review Act 1991 (Qld) that the appellant give a statement of reasons – where the primary judge ordered that the appellant give the respondent a statement of reasons in relation to the decision not to refer the respondent’s case to the Court of Appeal – where Item 1 of Sch 2 Judicial Review Act 1991 (Qld) provides that reasons need not be given in relation to “decisions relating to the administration of criminal justice, and in particular–” – where the primary judge applied the ejusdem generis rule of statutory construction to come to the conclusion that the class of matters coming within Item 1 of Sch 2 was confined to “decisions relating to the investigation and trial of criminal offences” – whether the general introductory words of Item 1 of Sch 2 were restricted by the particular matters outlined in the item’s sub-paragraphs – whether a referral under s 672A can be categorised as a decision relating to the “administration of criminal justice” / Criminal Code 1899 (Qld), s 672A(1)(a), s 672A(1)(b) / Judicial Review Act 1991 (Qld), s 16, s 31, s 38(2), s 39, s 48, Item 1 of Sch 2 / Bull v The Queen (2000) 201 CLR 443; [2000] HCA 24, cited / Burt v Governor-General [1992] 3 NZLR 672, cited / Cody v J H Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17, considered / Harper v Costigan (1983) 72 FLR 140, considered / Inland Revenue Commissioners v Parker [1966] AC 141, considered / Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited / Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368, considered / R v Daley; ex parte A-G (Qld) [2005] QCA 162, cited / R v Home Secretary; ex parte Bentley [1994] QB 349, cited / Ricegrowers Co-Operative Mills Ltd v Bannerman & Trade Practices Commission (1981) 56 FLR 443, cited

COUNSEL: M Hinson SC for the appellant / M J Byrne QC, with D C Shepherd, for the respondent

SOLICITORS: Crown Law for the appellant / Fisher Dore Lawyers for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with the orders proposed by His Honour, and with his reasons.

MUIR JA: The respondent was convicted in June 2000 after a trial by jury of the offence of maintaining a relationship of a sexual nature with a child under 12 in his care, one count of rape and three counts of indecent treatment of a child under the age of 12 in his care. He was sentenced to 8 ½ years imprisonment. In October 2005 he petitioned the Governor for a pardon.

On 31 March 2007 the appellant decided, on advice given to him by the Crown Solicitor, not to refer the respondent's case to the Court of Appeal for consideration pursuant to s 672A of the Criminal Code 1899 (Qld). The Governor, in consequence, was advised not to pardon the respondent and on 12 June 2007 the Governor acted in accordance with that advice. By an application for a statutory order of review filed on 10 September 2007, the respondent applied to review "… all the decisions of the State Attorney General that [the respondent] should not be pardoned according to law." The application, as amended, seeks also to have the Governor's decision reviewed, although Her Excellency has not been made a party to these proceedings. At first instance and on appeal, the parties were content to proceed on the basis that no relief was sought against any person or entity other than the appellant.

By an application filed on 12 December 2007, the appellant applied, pursuant to Section 48 of the Judicial Review Act 1991 ("the Act") for an order that the application for statutory order of review be stayed or dismissed on the grounds that it was inappropriate and that no reasonable basis for it had been disclosed. That application was dismissed. The respondent made an oral application for an order pursuant to s 39 of the Act that the appellant give a statement of reasons within a specified time. The learned primary judge on 12 February 2008 ordered, purportedly under s 38(2) of the Act, that the appellant give the respondent a statement of reasons in relation to his decision not to refer the respondent's case to the Court of Appeal within 28 days of the date of the order.

The appellant appeals against that order on grounds that the appellant's decision under review was not a decision in respect of which the respondent was entitled to reasons by virtue of s 31 of the Act.

Relevant Statutory Provisions

Section 672A of the Criminal Code 1899 (Qld) relevantly provides¹:

"672A****Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may—

(a)refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly."

Sections 31 and Schedule 2 Item 1 of the Act relevantly provide²:

"31****Decision to which part applies

In this part—

decision to which this part applies means a decision that is a decision to which this Act applies, but does not include—

(a)a decision that includes, or is accompanied by a statement, giving the reasons for the decision; or

(b)a decision included in a class of decisions set out in schedule 2."

"Schedule 2****Decisions for which reasons need not be given

1****Administration of criminal justice

Decisions relating to the administration of criminal justice, and, in particular—

(a)decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and

(b)decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and

(c)decisions in relation to the issue of search warrants under a law of the State; and

(d)decisions under a law of the State requiring—

(i)the production of documents or things; or

(ii)the giving of information; or

(iii)the summoning of persons as witnesses."

For the purposes of s 672A, the appellant is a Crown Law officer³ and "the Court" means Court of Appeal.⁴

Counsel for the respondent argued that the subject decision was of an "extraordinary" nature and cannot be categorised as one "relating to the administration of criminal justice". It is said that it is extraordinary because a decision under s 672A falls to be made after the trial and appeal processes have been exhausted. Such decisions, it is argued, are not ones taken "in the workings of the criminal justice system".

The learned primary judge concluded, with respect correctly, that the introductory words of Item 1, if they stood alone, would encompass the subject decision of the appellant.

In Burt v Governor-General⁵ the prerogative of mercy was described as "an integral element in the criminal justice system". The Court of Appeal in R v Home Secretary; ex parte Bentley⁶ referred to the prerogative of mercy as "an important feature of our criminal justice system". Counsel for the respondent makes the point that the subject decision was not an exercise of the pardoning power. That is plainly correct but in my view it does not assist the respondent's argument. A reference under s 672A is a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal. If the pardoning power is an element of the criminal justice system it would tend to follow that a referral under s 672A is also part of the criminal justice system. But even if the pardoning power is not to be so regarded, it would not follow that a s 672A referral is to be similarly categorised. The Crown prerogative is not derived from statute and is not confined "by any rules or laws of evidence, procedure, and appellate conventions and restrictions."⁷ Proceedings under s 672A are quite different.

The fact that the powers conferred on s 672A are enlivened by the presentation of a petition for the exercise of the pardoning power after conviction, and in the normal case, after unsuccessful appeal, means that the powers are distinctive in nature and are likely to be exercised infrequently. It does not follow that decisions resulting from the exercise of such powers do not relate to the administration of criminal justice. Section 672A is a provision of the Criminal Code, the principal repository of the criminal laws of Queensland. Section 672A is in Part 8 Chapter 7 headed "Appeal – Pardon". The issue to be determined by the Court of Appeal in considering a matter referred under s 672A(a) is the same as that falling for resolution on an appeal, namely whether there has been a miscarriage of justice.⁸ Where the reference is under s 672A(2), the Court of Appeal is required to consider "all the admissible evidence available in the case, whether new, fresh or already considered in either proceedings."⁹

A referral under s 672A thus has a strong and direct connection with the criminal law and the administration of criminal justice. For a decision to come within the introductory words of Item 1 of Sch 2 it need only be one "relating to" the administration of criminal justice. That expression is "extremely wide but it is also vague and indefinite . . . it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified."¹⁰ For the reasons just given it is apparent that the relationship of the subject decision to the "administration of criminal justice" was such that the decision was one "relating to the administration of criminal justice".

Where a reference is under s 672A(b) rather than s 672A(a) it may be arguable that the decision of the Crown Law Officer has less of a nexus with the administration of criminal justice. It is unnecessary for present purposes to explore that matter. There is no suggestion that any referral would have been under s 672A(b).

Counsel for the respondent also placed reliance on the amendment of paragraph (e) of Sch 2 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a schedule comparable to Sch 2 of the Act, to include the following sub-paragraph (v):

"(v) decisions in connection with an appeal (including an application for a new trial or a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge) arising out of the prosecution of persons for any offences against a law of the Commonwealth or of a Territory; "

It was argued that the inclusion of sub-paragraph (v) supported the view that prior to its inclusion, the matters encompassed within it were not considered to be "decisions relating to the administration of criminal justice". The amendment was argued to have more than usual relevance to the construction of Item 1 of Sch 2 of the Act because of s 16 of the Act. Section 16 provides that if a provision in the Commonwealth Act "expresses an idea or particular words" and a provision of the Act "appears to express the same idea in different words because of a different legislative drafting practice" then "the ideas must not be taken to be different merely because different words are used".

It was not suggested that any differences in drafting practice led to the inclusion of sub-paragraph (v) and s 16 would thus appear to be of little or no relevance. Nor does it appear to me that the fact that the Legislature considered it desirable to include sub-paragraph (v) particularly assists the respondent's argument. A likely explanation is that the inclusion was done out of an abundance of caution or that it was thought desirable to list, for ease of reference and clarity, the more common or obvious matters which might arise for consideration.

Counsel also placed reliance on Morling J's reasons in Harper v Costigan.¹¹ The issue in that case was whether the decision of Commissioner Costigan to summon persons to give evidence before the Royal Commission he was conducting were decisions "in connection with the investigation . . . of persons for any offences against a law of the Commonwealth"¹² and were thus decisions relating to the administration of justice for the purposes of paragraph (e) of Sch 2.

In the course of his reasons Morling J remarked of paragraph (e) that "the paragraph provides its own dictionary"¹³. That observation, it was argued, supported the view that the meaning of the general introductory words of Item 1 of Sch 2 of the Act was confined by the particular matters instanced in the item's sub-paragraphs.

Morling J's reasons however, appear to me to support the contrary conclusion. His Honour relevantly said:¹⁴

"In my opinion, the paragraph provides its own dictionary. In par (e)(i) a decision in connection with the investigation of a person for an offence against a law of the Commonwealth is described as one instance of a decision relating to the administration of criminal justice. The words "in particular" indicate that decisions of the kind referred to in par (e)(i) are encompassed by the opening words of the paragraph. Cf Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 450. So are decisions requiring the production of documents, the giving of information, or the summoning of witnesses -- vide par (e)(v). Thus in the context in which they appear the words "relating to the administration of criminal justice" have a meaning much wider than they would otherwise have." (Emphasis added)

The point being made is that the meaning of the introductory words will be expanded by the matters which follow if those matters would as a matter of normal construction would be within the scope of the introductory words. But in any event, for the reasons given later, I am unable to accept that the meaning of the general introductory words is confined by the particular matters instanced in Item 1 of Sch 2 of the Act.

The primary judge formed the view that the introductory words had to be read down by application of the ejusdem generis rule of statutory construction. He cited the following passages from the reasons in Cody v J H Nelson Pty Ltd:¹⁵

"The contention is that acts or omissions which the Governor-General may declare to be black marketing should be construed according to the rule or canon of construction called 'ejusdem generis' or 'noscitur a sociis.' It is not a rule of law. But where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified. This 'rule of construction is subordinate to the real intention of the parties, and does not control it; that is to say, that the canon of construction is but the instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of this or, I suppose, any other canon of construction' (Thorman v. Dowgate Steamship Co. Ltd. [8], at p. 419)."¹⁶

"The three canons of construction are relied upon: Lord Bacon's verba generalia restringuntur ad habilitatem rei vel personae, to which in the passage just quoted there is a reference; Lord Hale's noscitur a sociis, and that which allows the court to give to general expressions following an enumeration of more particular things or matters an application no larger than to things and matters ejusdem generis. But standing as a caution against a too ready use of these counsels there is yet another Latin canon, generalia verba sunt generaliter intelligenda, which is as much as to say words although general should be understood in their primary and natural signification unless there are sufficient indications of some other meaning. This last maxim or brocard is not to be understood in opposition to the three first mentioned. They relate to the context and subject matter in which indications of a narrower meaning may be seen.

The precept allowing of the restraint of a general expression to a class of things ejusdem generis with particular expressions preceding it may be regarded as a subordinate rule forming part of the larger principle stated by Sir Benson Maxwell.

…

In the interpretation of the last part of s. 3 of the Black Marketing Act I think that we should begin with the presumption or assumption that words, even when general, mean what they say. No canon of construction is enshrined in the observation made by Lord Wright in James v. Commonwealth [22], at p. 627, concerning the words "absolutely free" that "the use of the language involves the fallacy that a word completely general and undefined is most effective. A good draftsman would realize that the mere generality of the word must compel limitation in its interpretation." Doubtless the observation embodies a shrewd generalization, not untinged with cynicism, concerning the incredulity which broad and sweeping provisions arouse in the judicial mind, so apt to regard them as legislative hyperbole to be confined in application within moderate and practicable limits."¹⁷

The ejusdem generis rule however must be employed with caution. In Cody, Dixon J warned¹⁸:

"But the truth is that it is wrong to use the rule for an ejusdem-generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter."

Dixon J had pointed out earlier that the rule was "subordinate to the real intention… and does not control it."

Mahoney JA in Mattinson v Multiplo Incubators Pty Ltd¹⁹ sounded a more pronounced warning concerning the utilisation of the rule:

"There are frequently ... several competing formulations of the genus. Which one is to be selected as the intended genus will, as it has been said, require that there first be ascertained what is the purpose of the statutory provision or the legislative intention as disclosed by it ... and the exercise may then partake of the circuitous. The legislative intention to be derived from the words used is not ascertained by applying the ejusdem generis rule; whether and in what manner the rule is to be applied is to be determined after the legislative intention has first been assessed ... If, in order to determine whether there is any, or what, genus, or whether the particular words exhaust that genus, it is necessary first to determine what was the relevant intention of that part of the legislation, the construction of the words may normally be best determined simply by reference to that intention, without the necessity of resorting to an artificial rule of construction."

It is not immediately apparent why the Legislature would have wished to limit the broad scope of the introductory words or why, if it had so intended, different language would not have been employed.

Item 1 does not provide "Decisions relating to the administration of criminal justice, "namely" … or … "particulars of which are …"

The normal role of the words "in particular" appearing after words describing a class of matters or matters of a general nature is to identify a specific matter or specific matters which come within the general class or description²⁰. The expression is not one of limitation.

In Inland Revenue Commissioners v Parker²¹ Viscount Dilhorne dismissed a contention somewhat similar to that advanced here on the respondent's behalf for the following reasons:

"I do not think that one should restrict the general and unambiguous words of the definition in the statute by regard to the mischief which it is thought that the section is aimed at. Nor do I think that it is right to seek to interpret the general words in the light of the particular instances given in the section. It is a familiar device of a draftsman to state expressly that certain matters are to be treated as coming within a definition to avoid argument on whether they did or not.

The particular instances given in section 43(4)(i), in my opinion, do not in any way restrict the meaning to be given to the general words which precede them."

Section 43(4)(i) of the Finance Act 1960 (UK) relevantly provided:

"transactions, of whatever description, relating to securities, and in particular - (i) the purchase, sale or exchange of securities, (ii) the issuing or securing the issue of, or applying or subscribing for, new securities, (iii) the altering, or securing the alteration of, the rights attached to securities."

The primary judge identified the class of matters coming within Item 1 as "decisions relating to the investigation and trial of criminal offences." That class is surely too narrow. For example, there can be no good reason for excluding decisions concerning the appellate processes from the scope of Item 1. Decisions under paragraph (d) may be relevant to appeals, or, for that matter, to a process under s 672A. But the identification of a genus serves no useful purpose. The particularised items would not, as a general rule at least, even without being introduced by the words "in particular", operate to limit the scope of the general introductory words.

In the opinion of the learned author of Statutory Interpretation:²²

"The ejusdem generis principle is presumed not to apply where apparently general words are followed by narrower words suggesting a genus more limited than the initial general words, if taken by themselves, would indicate. The question is however, as always, one of the legislator’s intention."

For the above reasons, I would order that: the appeal be allowed; the orders made by the primary judge on 12 February 2008 be set aside and that the respondent pay the appellant’s costs of and incidental to this appeal and of the hearing at first instance on 12 February 2008.

FRASER JA: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with the orders proposed by his Honour, and with his reasons for the orders.

Footnotes

1. Criminal Code 1899 (Qld). ↩

2. Judicial Review Act 1991 (Qld). ↩

3. Criminal Code 1899 (Qld) s 1. ↩

4. Criminal Code 1899 (Qld) s 668. ↩

5. [1992] 3 NZLR 672 at 681 (CA). ↩

6. [1994] QB 349 at 362, 363. ↩

7. Mallard v The Queen (2005) 224 CLR 125 at 129. ↩

8. R v Daley; ex parte A-G (Qld) [2005] QCA 162. ↩

9. Mallard v The Queen (2005) 224 CLR 125 at 129. ↩

10. Bull v The Queen (2000) 201 CLR 443 at 462 per McHugh, Gummow and Hayne JJ quoting a passage from the reasons of Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620. ↩

11. (1983) 72 FLR 140. ↩

12. Paragraph (e)(i) of Sch 2. ↩

13. (1983) 72 FLR 140 at 145. ↩