Re Brian James Maher v Attorney-General of the Commonwealth of Australia [1985] FCA 149; 5 FCR 514 (3 May 1985)

FEDERAL COURT OF AUSTRALIA

Re: BRIAN JAMES MAHER
And: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
No. G30 of 1985
Administrative Law - Poor Persons
[1985] FCA 149; 5 FCR 514

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Appointment of counsel for defence of indicted person under Judiciary Act 1903 s.69(3) - Certification by Justice or Judge to Attorney-General that indicted person "is without adequate means to provide defence for himself" - Interpretation - The contrary of that which is certified not to be considered in exercise of discretion conferred by s.69(3).

Judiciary Act 1903 - s.69(3)

Poor Persons - Judicial Certification under s 69(3) of the Judiciary Act 1903 - "Without adequate means to provide defence for himself" - Application for appointment of counsel for his defence refused - Attorney-General's discretion - Whether the ground taken by the Attorney-General was legally available - Judiciary Act 1903 (Cth), s 69(3). Held, that the expression "adequate means to provide a defence for himself" in s 69(3) of the Judiciary Act 1903 comprehends a capacity to secure the provisions of the necessary money from another person on reasonable terms. On review of a decision of the Attorney-General under that section, where a judge of the Supreme Court had certified under that section that he was satisfied that the applicant was without adequate means to provide defence for himself, and it could not be shown that the judge had failed to take into account the full meaning of the expression, it was not open to the Attorney-General to refuse to cause arrangements to be made for the defence of the applicant on the ground that the Attorney-General was not satisfied that the applicant could not arrange for payment of his costs from another source.

State of Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 56 ALJR 868, referred to.

HEARING

Brisbane, 1985, May 3. 3:5:1985
APPLICATION

Application for an order of review of a decision of the Attorney-General made under s 69(3) of the Judiciary Act 1903.

J. A. Dowsett QC and D. R. Gore, for the applicant.

H. G. Fryberg QC and I. C. Diehm, for the respondent.

I. D. F. Callinan QC and P. J. Flanagan, amicus curiae.

Solicitors for the applicant: Hopgood & Ganim.

Solicitor for the respondent: Australian Government Solicitor.
GFV

ORDER

Orders accordingly

DECISION

Application for an order of review in respect of a decision made by the respondent under section 69(3) of the Judiciary Act 1903 that he decline to cause arrangements to be made for the defence of the applicant, a person committed for trial for offences against the law of the Commonwealth. Section 69(3) of the Judiciary Act 1903 provides:

"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 is sworn apply to a
Justice in Chambers or to a Judge of the
Supreme Court of a State for the appointment
of counsel for his defence. If it be found to
the satisfaction 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."

The applicant was on 3 October 1984 committed for trial for a number of offences against section 86(1)(e) of the Crimes Act 1914. The trial of the applicant and two other persons has been ordered for 7 May 1985 in the Supreme Court of Queensland. By letter dated 9 January 1985 from the applicant's solicitors, the respondent was asked for his "intervention in ensuring Mr Maher is properly represented at the trial." In that letter, it was alleged that the applicant believed he had assets "under his disposition or control" which were sufficient to provide for his defence, but that those assets were "frozen." Receipt of the letter was acknowledged on the respondent's behalf by letter dated 25 January 1985. On 28 February 1985 an order for sequestration of the applicant's estate was made in exercise of bankruptcy jurisdiction. The respondent was informed of that order. On 12 March 1985, the respondent decided not to approve the provision of assistance to the applicant, but expressed his willingness to reconsider the matter if a judicial certification under section 69(3) were made to him. Certification in the terms of the sub-section was made by Carter J. of the Supreme Court of Queensland on 13 March 1985. On 11 April 1985, the decision in relation to which review is now sought was communicated by a telex message to the applicant's solicitors from an officer of the Attorney-General's Department in these terms:

"The Attorney-General has asked me to reply to
your recent telexes and correspondence
referring to the certification by Mr Justice
Carter under s.69(3) of the Judiciary Act
regarding your client, Mr B.J. Maher in
relation to his forthcoming trial in the
Supreme Court of Queensland commencing on 7
May 1985. You asked that the Attorney-General
review his previous refusal to approve legal
aid for Mr Maher's legal representation at his
trial in the light of Mr Justice Carter's
certification under s.69(3).

2. The Attorney-General has reconsidered the
matter and has decided not to approve
financial assistance to Mr Maher under s.69(3)
for his costs in his forthcoming trial, on the
ground that he is not satisfied that Mr Maher
cannot arrange for payment of his costs from
another source and, therefore, that it is not
reasonable in all the circumstances to approve
financial assistance for Mr Maher."

In response to inquiry on the applicant's behalf, the same officer sent to the soliciors the following telex message on 18 April 1985:

"I refer to your telexes dated 11 and 15 April
1985 in which you ask for particulars of the
information upon which the Attorney-General
based his decision not to approve financial
assistance to Mr Maher. The terms of the
decision and the reasons therefore were
conveyed to you in my telex of 11 April.

I confirm that, as I stated in my telephone
conversation with your Mr Rogers on 11 April
1985, the Attorney-General made his decision
on the basis of the material supplied by your
firm, including the transcripts of the
judgments of Carter J."

The material supplied by the applicant's solicitors to the respondent, to which the telex message refers, is in evidence before me; so also are two sets of documents, each a submission by an officer of the respondent's Department with respect to the application for financial assistance to the applicant.

2. It was submitted that, on their proper construction, the words in section 69(3), "adequate means to provide defence for himself," comprehend a capacity in the accused to procure a person under no obligation to do so to provide the money required for the legal representation of the accused at his trial. I accept that submission. I think that the phrase comprehends not only the capacity to secure the provision of the necessary money by the exploitation of the accused's own property and of his own legal rights, but also the capacity to secure the provision of the necessary money, on terms which the justice or judge considers it not unreasonsble that the accused accept, by asking, or by accepting an offer made by, a person or persons able and willing to provide the money if the accused consents to that provision being made. If, for example, a wealthy relative were willing and able to provide the necessary money on such terms as the justice or judge thought it was not unreasonable that the accused accept, there could not, in my opinion, be a finding by the justice or judge that the accused was "without adequate means to provide defence for himself" within the meaning of that phrase in section 69(3). I should say that I intend by the word "terms" to comprehend not only arrangements with respect to the financial relations of the accused and the person or persons willing to provide the money, but also the effects of the provision of the money on the personal relations of the accused with others.

3. If that construction of section 69(3) be correct, the question arises whether the ground which the respondent stated for his decision, that he was "not satisfied that Mr Maher cannot arrange for payment of his costs from another source", constitutes a consideration which the respondent may lawfully treat as relevant to the exercise of the discretionary power vested in him by the sub-section. It is a consideration which calls into question that as to which Carter J. had certified his finding. Upon its proper construction, the sub-section in my opinion withdraws from question by the respondent that which is certified to have been found, so that the exercise by the respondent of the discretionary power cannot lawfully be influenced by a finding contradictory of that which has been certified, or by a lack of satisfaction or persuasion@ as to that which has been certified. I reach that construction without reliance upon the rule of interpretation to which Gibbs C.J. referred in State of Victoria and Anor. v. The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 56 ALJR 868 at 870; 43 ALR 693 at 696.

4. If the finding certified by Carter J. includes a finding that the applicant lacks a capacity to secure the provision of the money necessary for his legal representation at his trial by asking a person able and willing to provide the money on what the judge would consider reasonable terms, the respondent's lack of satisfaction "that Mr Maher cannot arrange for payment of his costs from another source" cannot in my opinion constitute a lawful ground of the decision under review.

5. It was submitted that a reading of the learned judge's reasons for his decision demonstrated that his Honour had not consciously made any such a finding or formed any such a view of the evidence and that therefore the respondent was not precluded by law from taking his own lack of satisfaction into account as a consideration relevant to the exercise of the power conferred on him by section 69(3). But I find nothing in the reasons which Carter J. expressed for his decision to certify under section 69(3) which demonstrates that he did not intend to comprehend in his finding certified in the terms of the sub-section the particular finding specified in the submission.

6. It is clear that the submission placed before the respondent was based upon the opinion that the ground taken for the decision was a ground legally available to him, so that he would have had every reason to conclude that the course he decided to take was in accordance with law. In the very short time available for consideration of this matter, but with the considerable assistance of counsel for both parties, I have reached the conclusion that it was not.

7. The orders disposing of the application will be in accordance with the following minutes:

(1) Set aside the decision of the respondent
made on 9 April 1985 and specified in
paragraph 2 of the telex message from
C.C. Creswell to Messrs Hopgood and
Ganim of which a copy is page 220 of
exhibit A to the affidavit of Joseph
Michael Ganim sworn 24 April 1985.

(2) Refer the matter of the application by
the applicant for the appointment of
counsel for his defence to the
respondent for further consideration
according to law.

8. I should say that I did not forget the submission that there should be some direction addressed to the respondent, as provision is made for that in s.16 of the Administrative Decisions (Judicial Review) Act 1977. But this particular respondent, it seems to me, is not, as perhaps other administrative authorities might be, in need of any direction. It is sufficient to say what I have put into the order and it would really be offensive to include directions.

(3) Order that the applicant's costs of the
application, other than costs dealt with
by the order of Spender J. made on 24
April 1985, be paid by the respondent.