Bellino v Clair [1992] QSC 339 [1993] 2 Qd R 236

IN THE SUPREME COURT OF QUEENSLAND No. 719 of 1992 Before Mr. Justice Derrington BETWEEN: GERALDO BELLINO Applicant AND: FRANCIS CLAIR Respondent JUDGMENT - DERRINGTON J. Delivered the 17th day of September 1992 CATCHWORDS: Judicial review. Decision of Crown Law Officer in exercising right of reply in addresses. Not a decision of an administrative character. J.R. Acts. 4. Criminal Law. Crown Law officer. Right of reply. Criminal Code s. 619. When should exercise right. Counsel: Mr. Bellino in person. Mr. Devlin for respondent. Solicitors: Office of the Special Prosecutor for respondent. Hearing Date(s): 17th Septemb~r 1992 -- 1 of 5 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: GERALDO BELLINO FRANCIS CLAIR JUDGMENT - DERRINGTON J. No. 719 of 1992 Applicant Respondent Delivered the 17th day of September 1992 The above applicant has brought proceedings under the Judicial Review Act 1991 seeking "an order that Francis Clair should not exercise the special entitlement he claims in a manner that denies me natural and equal justice." Mr. Clair is a special prosecutor who has the status of a "Crown Law Officer" within the meaning of the Criminal Code and is prosecuting the applicant on a retrial which is lengthy and complex. He has informed the applicant that he proposes to exercise his right of reply in final speeches to the jury pursuant to the provision in s. 619 of the Criminal Code which says that "a Crown Law Officer is entitled to reply in all cases, whether evidence is adduced by an accused person or not." The learned trial Judge has stated that he does not intend to prevent this. -- 2 of 5 -- 2 The application under this Act is directed to the "decision" of the respondent to exercise his discretion granted by the section in the way indicated; and the applicant raises a number of issues based largely upon his self-representation in his defence and has suggested a comparison with other cases to support his claim. The evidence of the witnesses in the trial is due to commence tomorrow and the applicant has indicated that he requires the prosecution to call its witnesses in a certain order and to have a large number of them available for later recall. His justification is that his application for review is returnable in about two weeks time and he claims that his demands are based upon his uncertainty because the result of his application will not be known till then. As a result the respondent has brought this counter- application to have the original application dismissed as disclosing no reasonable cause of action. Such a step will be sparingly applied and then only if the absence of any reasonable cause of action is clearly demonstrated; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at 128-130. However, because the applicant has delayed in bringing his application and has unnecessarily set it down so far ahead, and because his preparation to meet the cross-application will mean that he is fully prepared, it is proper and convenient to determine the whole matter as an accelerated hearing of the original application. Perhaps the most obvious feature of the case is that this is not an application in respect of a "decision" that comes -- 3 of 5 -- 3 within the court's jurisdiction for review as invested by the Act. By s. 4 it is provided that "In this Act - 'decision to which this Act applies' means (a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion) . . 11 . . The decisions which are reviewable in this court under the Act are limited by this definition and not surprisingly they do not extend to decisions having a judicial character. Clearly the decision of the prosecutor as to whether to exercise a right of reply during the course of a trial is not an administrative decision. Certainly it is part of the administration of the law but it is part of the judicial process. No authorities on this point have been advanced in argument but while there may be cases where it i~ necessary to embark upon a closer definition of what is administrative in character in the making of a decision, the function of a Crown Law Officer in making decisions in the course of a criminal trial are clearly not within that description, even in the exercise of such discretions as are given to him by a statute. In the performance of his functions in a trial as a prosecutor, and particularly in respect of this issue, neither his role nor his decision could be considered administrative. Support for this view may be derived from the review of the authorities as to the difference between administrative and judicial processes which was conducted in Royal Aquarium and Summer and Wintergarden Society v. Parkinson (1892), Q.B. 431, esp. at 442, where the position of counsel in a trial is briefly discussed. If there should be any injustice as the result of any -- 4 of 5 -- 4 action by a prosecutor in the performance of such a function, the proper place for review in on appeal: The Queen v. Apostolides (1984) 154 C.L.R. 563. Clearly the legislature did not intend to alter this by this legislation, which is directed to the replacement of the prerogative writs. directed at judicial proceedings. They had never been As a result the application fails in limine. However, it is convenient to observe further that:- 1. As a Crown Law Officer the respondent is entitled to exercise the discretion as he proposes, as was implicitly recognised in The King v. Walsh and Bunting (1902) St.R.Qd. 6. 2. In a case of such length and complexity it is not only open to a Crown Law Officer to exercise this right but it is also desirable; Varley v. The Queen (1976) 12 A.L.R. 347. See also remarks of McPherson J.A. on the applicant's appeal from his first trial. 3. There is nothing in the history of this or other matters that have come before the courts in recent times that would imply inconsistency in the respondent's doing as he proposes to do. The application to dismiss the original application is granted with costs and the original application is therefore dismissed with costs. -- 5 of 5 --