Donohue v Attorney-General for Victoria
[2024] VSC 339
•20 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04352
| NEVILLE DONOHUE | Plaintiff |
| v | |
| ATTORNEY GENERAL FOR VICTORIA | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2024 |
DATE OF JUDGMENT: | 20 June 2024 |
CASE MAY BE CITED AS: | Donohue v Attorney-General for Victoria |
MEDIUM NEUTRAL CITATION: | [2024] VSC 339 |
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JUDICIAL REVIEW — Plaintiff found guilty of charges relating to creation of false documents, perjury and perverting the course of justice — Where plaintiff has made multiple unsuccessful attempts to appeal conviction and sentence — Petition for mercy submitted by plaintiff to Attorney-General for Victoria — Where Attorney-General did not recommend exercise of prerogative of mercy or refer plaintiff’s case to Court of Appeal — Whether Attorney-General can be compelled to recommend that petition be granted — Criminal Procedure Act 2009 (Vic) s 327 — Members of Parliament (Standards) Act 1978 (Vic) s 13 — Parliamentary Administration Act 2005 (Vic) — Plaintiff’s claim without merit — Application for review dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self‑represented | |
| For the Defendant | L Brown SC and M Narayan | Victorian Government Solicitor |
HIS HONOUR:
In 2018 a jury found the plaintiff, Neville Donohue (‘Donohue’), guilty of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury (‘conviction’). Donohue has made numerous attempts to quash or remove the effect of his conviction by repeatedly applying for leave to appeal to the Court of Appeal and special leave to appeal to the High Court, seeking to commence a proceeding for judicial review of decisions made at his trial, and by making two petitions to the Attorney-General for Victoria (‘Attorney-General’) for exercise of the prerogative of mercy. The foundation of each attempt is Donohue’s enduring belief that his conviction was unjust. Each attempt has failed.
This proceeding concerns Donohue’s second petition for mercy submitted to the Attorney-General on 14 February 2022 (‘second petition’). By originating motion filed on 17 August 2023, Donohue seeks an order compelling the Attorney-General to make a recommendation to the Premier of Victoria (‘Premier’) and/or the Governor of Victoria (‘Governor’) that the second petition be granted, and that there be an exercise of the prerogative of mercy in respect of his conviction. It became clear at trial that Donohue’s alternative position is that the Attorney-General should be ordered to refer his case to the Court of Appeal under s 327 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) so that the appeal against his conviction can be heard, allowed and a further jury trial ordered.
For the following reasons I conclude there is no merit in this proceeding and that Donohue’s application must be refused.
Background
On 19 September 2018, Donohue was found guilty of the charges referred to above following a trial in the County Court of Victoria (‘criminal proceeding’).[1] On 25 September 2018 he was sentenced to 53 months’ imprisonment with a non‑parole period of 33 months.[2] Donohue has served the term of imprisonment and is no longer in custody.
[1]Director of Public Prosecutions v Donohue [2018] VCC 1578.
[2]Ibid [102].
In late 2018, Donohue applied to extend the time in which he could appeal his sentence. The application was refused by the Court of Appeal in July 2019.[3] Also in July 2019, Donohue applied to extend the time in which he could appeal his conviction. That application was refused by the Court of Appeal on 25 November 2019. The Court found that the proposed appeal had no prospect of success and that granting an extension of time would be futile.[4] In June and November 2020, the High Court refused applications by Donohue to extend the time to seek special leave to appeal from each of the Court of Appeal’s decisions.[5]
[3]Donohue v The Queen [2019] VSCA 160.
[4]Donohue v The Queen (No 2) [2019] VSCA 274.
[5]Donohue v The Queen [2020] HCASL 130; Donohue v The Queen [2020] HCASL 242.
On 29 January 2020, Donohue submitted a petition for exercise of the prerogative of mercy (‘first petition’). On 21 April 2021, Donohue filed an originating motion in this Court seeking judicial review to compel the Attorney-General to make a decision on the first petition. The Attorney-General subsequently made a decision on the first petition and the proceeding was dismissed by consent.
On 9 September 2020, Donohue again sought leave to appeal his conviction purportedly under s 326A of the CPA. The application was dismissed by the Court of Appeal as an abuse of process, on the basis that it was an attempt by Donohue to relitigate issues that had already been decided against him.[6] In March 2021 the High Court refused an application by Donohue for special leave to appeal that decision, also finding it was an abuse of process.[7]
[6]Donohue v The Queen (No 3) [2020] VSCA 302.
[7]Donohue v The Queen [2021] HCASL 45.
On 14 February 2022, Donohue submitted the second petition to the Attorney-General.
In July 2022 Donohue attempted to commence a proceeding in this Court against the trial judge and informant in the criminal proceeding, seeking judicial review of ‘decisions and orders’ made during the trial. The Prothonotary refused to accept Donohue’s documents for filing. The Court considered the proposed proceeding to be an abuse of process because it was a further attempt to relitigate, and on that basis upheld the Prothonotary’s decision.[8]
[8]Donohue v Phillips [2022] VSC 558.
In September 2022, Donohue made three further attempts to commence an appeal of his conviction. On each occasion the Court refused to seal the initiating documents. Donohue’s application for special leave to appeal one of these refusals was again refused by the High Court on grounds including that Donohue’s application sought to reagitate previously determined issues and was an abuse of process.[9]
[9]Donohue v The King [2023] HCASL 28.
In July 2023, Donohue made a further attempt to initiate an appeal of his convictions. Again, the Registrar of Criminal Appeals refused to seal the documents on grounds that the proposed proceeding was a further attempt to relitigate matters that had already been determined by that Court and by the High Court.[10]
[10]Donohue v The King [2023] VSCA 224.
Second petition and this proceeding
In the originating motion commencing this proceeding, Donohue articulates his claim as follows:
THE PLAINTIFF CLAIMS:
This Originating Motion for Judicial Review is lodged on the basis that the defendant has made a decision not to fulfil her responsibilities under the Members of Parliament (Standards) Act 1978, Part 3, 13(1) and (3); and the Parliamentary Administration Act 2005; and in a time and manner that would be reasonably expected by the community under these Acts.
Despite continuous requests on behalf of 3 Victorian citizens (the plaintiff and the plaintiff’s invalid wife, and their disabled son), the defendant decided not to act on their behalf in making recommendation of the plaintiff’s Petition for Mercy to the Premier of Victoria, and to the Governor of Victoria.
Under ‘Grounds’, Donohue refers to the first petition and says:
The defendant’s representatives eventually declined to recommend the Petition of Mercy, but the reasons given were based on false information. It was clear from the reasons given that the defendant and/or her representatives had simply not read the plaintiff’s petition in any level of detail, or at all. E.g. the 2 clear miscarriages of justice that occurred in the plaintiff’s County Court trial, when: firstly, the trial judge knowingly allowed Victoria Police to manipulate and withhold critical evidence from the plaintiff’s 2 laptop computers. This evidence in the laptop computers not only damaged, but completely destroyed the prosecution case. And, secondly, the trial judge heard evidence from the Commonwealth Government (regarding the plaintiff’s paramilitary intelligence service) without the jury present, and then deliberately blocked the jury from hearing that evidence, or even knowing that the evidence had been given. This evidence from the Commonwealth Government, also, not only damaged, but completely destroyed the prosecution case. These glaring miscarriages of justice which led to the plaintiff’s wrongful conviction were then ignored by the Appeals Courts who simply did not allow the Appeals to proceed. With the Courts unwilling to allow a finding of fault with a fellow trial judge, it then turns to the chief law officer of Victoria to have the courage that was lacking in the Courts and to ensure that justice is done, and that a citizen does not suffer a wrongful conviction without, at least, some recognition of that wrongful conviction.
He then refers to the second petition and concludes:
As with all Petitions for Mercy, the Attorney General of Victoria is called upon to rectify a failure of the justice system in Victoria, and recommend to The Premier of Victoria, and ultimately the Governor of Victoria that a Grant of Mercy would appropriately address such a failure to at least some extent.
Donohue expresses the relief sought as follows:
That the defendant makes the decision to fulfil her duty under the Acts, and, in the interests of justice, expeditiously recommend the plaintiff’s Petition for Mercy to the Premier of Victoria, and to Her Excellency the Governor of Victoria, to correct the wrongful conviction which was ignored by the Courts that fall within the defendant’s ministerial responsibility, and the course of justice that falls within the guardianship of the defendant.
Donohue relied on 10 affidavits affirmed by him in this proceeding. In the first of those affidavits affirmed on 25 August 2023, he said:
That I, the plaintiff, suffered a clearly wrongful conviction in the County Court of Victoria and the Appeals Courts failed to allow the plaintiff the opportunity to address the wrongful conviction. Therefore I submitted a Petition for Mercy to the defendant regarding the wrongful conviction.
The affidavit concludes as follows:
AND THE PLAINTIFF CLAIMS THE FOLLOWING REDRESS:
That the defendant immediately recommends the Grant of Mercy for the plaintiff to the Premier of Victoria, and to the Governor of Victoria.
Attached to this affidavit is a document headed ‘Petitions for Mercy’, which contains general information for applicants provided by the Department of Justice and Community Safety. Donohue said that in the second petition, he relied on the following section of the general information document:
Petitions on legal grounds
Petitions on legal grounds could include evidence that casts doubt on the conviction, that the petitioner did not receive a fair trial or suggests that the petitioner has suffered a substantial miscarriage of justice.
For a petition on legal grounds, you may want to include:
·evidence that was not considered at the time of the trial or appeal
·an explanation as to why the evidence was not considered at the trial or appeal, and
·an explanation as to why evidence supports granting the petition.
In his submissions Donohue said, in effect, that the second petition contained evidence which accorded with the grounds set out in the information document above, and which demonstrated that his criminal trial was not fair and his conviction wrongful. He submitted that for this reason the Attorney-General was obliged to recommend to the Premier and/or Governor that the petition be granted or his case be referred for appeal.
After making the second petition, Donohue sent further correspondence to the Attorney-General and others asking for information about the progress of the petition and repeating arguments that he had advanced in support of it. In a letter to the Attorney-General and others dated 15 March 2022, Donohue stated:
The simple facts are:
l. The crucial evidence given in my trial, by the Australian Government Solicitor (representing several Federal Government Departments and agencies), regarding my military and paramilitary intelligence service, was withheld from the jury by the judge – without explanation. This evidence would have resulted in a verdict of not guilty on all perjury charges.
2. The crucial evidence from my laptop computers, which were seized by Victoria Police, was also withheld from the jury by Victoria Police Forensics Department, with the full knowledge and compliance of the judge - without explanation. This evidence would have resulted in a verdict of not guilty on all of the other charges.
3. The judges in my appeals process failed to address either of these issues. I believe that failure was to deliberately avoid criticism of a fellow judicial officer.
The Attorney-General wrote to Donohue on 23 October 2023 after the commencement of this proceeding. That letter relevantly reads:
I have carefully considered your petition for mercy, pursuant to my statutory powers under section 327 of the Criminal Procedure Act 2009 (Vic). I have considered the materials you provided in February 2022 and the further materials you provided since that date.
I regret to inform you that I have decided not to refer your case to the Court of Appeal or any point arising from your case to the judges of the Trial Division of the Supreme Court for their opinion.
The Governor can exercise other forms of mercy under the Royal Prerogative of Mercy. I have sent your petition to the Premier, the Hon Jacinta Allan MP, who will provide your petition to the Governor.
The Attorney-General provided a statement of reasons relevant to her consideration of the second petition under s 327 of the CPA. The statement of reasons includes:
I have determined not to refer Mr Donohue’s current petition for mercy under section 327 of the Criminal Procedure Act 2009 (Vic) (CPA), either to the Court of Appeal to be heard as an appeal or to the Trial Division of the Supreme Court for an opinion.
The Attorney-General set out the following matters in the statement of reasons:
In making my decision, I considered all material received from Mr Donohue between February 2022 and the date of my decision.
I also considered relevant court judgements, including:
·sentencing remarks: DPP v Donohue [2018] VCC 1578.
·application for extension of time to appeal against sentence: Donohue v The Queen [2019] VSCA 160
·application for extension of time to appeal against conviction: Donohue v The Queen (No 2) [2019] VSCA 274; and
·second and subsequent appeal: Donohue v the Queen (No 3) [2020] VSCA 302.
I also considered Mr Donahue’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).
The Attorney-General expressed her conclusions in the statement of reasons as follows:
I have carefully considered the petition and materials before me. I have concluded that, overall, Mr Donohue’s petition for mercy does not raise a reasonable possibility that the Court of Appeal would allow an appeal if the matter was referred to it under s 327 of the CPA. In particular, I do not accept there is a reasonable possibility that:
·the verdict of the jury was unreasonable or could not be supported having regard to the evidence led in the criminal trial
·there was an error or irregularity in the trial that caused a substantial miscarriage of justice, or
·there was a substantial miscarriage of justice for any other reason.
The reasons for my decision about Mr Donohue’s petition are very similar to the reasons for my decision about his first petition in September 2021. I continue to consider it relevant that the Court of Appeal and the High Court have previously considered similar arguments to those raised in Mr Donohue’s current petition for mercy and refused applications for leave to appeal against conviction and sentence. In relation to those matters, I consider that the information provided in Mr Donohue’s current petition does not raise any reason to doubt the correctness of the decisions of the Court of Appeal or the High Court.
In considering the compassionate and health-related grounds raised in the petition, I consider it relevant that the court considered Mr Donohue’s family circumstances in sentencing and most relevantly, note that Mr Donohue’s sentence is complete.
As noted above, I considered and rejected very similar arguments to those now raised when I considered Mr Donohue’s first petition for mercy. I have considered this petition afresh and there is nothing in Mr Donohue’s current petition for mercy which persuades me that it would be appropriate to refer the matter to the Court of Appeal or to the Supreme Court for an opinion.
The Attorney-General concluded in the circumstances that any rights Donohue had under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were not affected by her decision not to exercise the power under s 327 of the CPA.
The Attorney-General also noted the following additional matters in the statement of reasons:
In addition, having regard to the material Mr Donohue has provided and the arguments that he has made, I do not consider that I would be assisted by an opinion from the Trial Division of the Supreme Court about any point arising from his case.
Further, I do not consider that there is any other reason for me to take action under section 327 of the CPA in relation to Mr Donohue’s case.
On 8 November 2023, the solicitor for the Attorney-General invited Donohue to withdraw this proceeding on the basis that the Attorney-General had made a decision on the second petition. In a letter dated 14 November 2023, Donohue responded as follows:
You have sent me a draft Notice of Discontinuance for me to file, and a copy of the Proposed Minute of Consent Order. I am unable to agree to a Notice of Discontinuance unless I know what recommendation the defendant has made regarding my petition for mercy. My Originating Motion for Judicial Review, and the accompanying Affidavit clearly seek a recommendation from the defendant, to the Premier and Governor, that my petition for mercy be GRANTED. If the defendant has recommended otherwise then the matter before the court is NOT moot- as suggested in your letter, and during the last court hearing.
In Donohue’s affidavit affirmed on 19 January 2024, he said:
Despite continuous requests on behalf of 3 Victorian citizens (the plaintiff and the plaintiff’s invalid wife, and their disabled son), the defendant decided not to act on their behalf in making recommendation of the plaintiff’s Petition for Mercy to the Premier of Victoria, and to the Governor of Victoria. Despite the overwhelming evidence, put before the defendant, of the severe miscarriage of justice, and wrongful conviction of the defendant, the defendant recommended to the Premier and the Governor of Victoria that mercy NOT be granted in a letter of 25 Nov 2023.
Donohue’s affidavit concludes as follows:
As with all Petitions for Mercy, the Attorney General of Victoria was called upon to rectify a failure of the justice system in Victoria, and recommend to The Premier of Victoria, and ultimately the Governor of Victoria that a Grant of Mercy would appropriately address such a failure to at least some extent. As the defendant has decided NOT to do so, then the only course of true justice is for the defendant to change her recommendation to the Governor to grant the petition for mercy, or to recommend that the plaintiff’s conviction be sent directly to an appeal (without the need for an application to appeal) in the Supreme Court of Victoria, Court of Appeal, and with none of the previous judges involved.
In a letter to the Attorney-General dated 22 February 2024, Donohue wrote:
As you have ultimate responsibility to the carriage of justice in Victoria, I must therefore ask you to please answer the following questions:
1. Do you condone the withholding and manipulation of evidence by Victoria Police?
2. Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence of such illegal actions by Victoria Police?
3. Do you condone the deliberate withholding, from the jury, by the trial judge, of the evidence given by the Australian Government Solicitor (acting on behalf of the heads of the Department of Defence, the Department of Foreign Affairs and Trade, the Australian Signals Directorate, and the Australian Secret Intelligence Service - the trial judge deliberately heard this evidence without the jury present)?
4. Do you condone the trial judge deliberately giving false and/or misleading information to the jury in his "charge to the jury"? E.g: the trial judge reiterated evidence from prosecution witness that he knew to be false and/or misleading.
5. Do you condone the trial judge deliberately withholding evidence from the jury which would have undoubtedly resulted in a NOT GUILTY verdict? E.g: the evidence from my laptop computers which was withheld and then manipulated by Victoria Police would have completely destroyed the prosecution case; and, even more so, the evidence from the Australian Government Solicitor about my 46 years service in the Australian Special Forces and the Australian Paramilitary Intelligence services, including my extensive overseas operational service, my need to use official aliases, and my need to hold official passports in those aliases. The prosecution case was based almost completely on the assertion that I had NOT served with either the Australian Special Forces or the Australian Paramilitary Intelligence services.
If you do not condone ANY of these, let alone all of them, then your recommendation to the Governor should have been to Grant my Petition for Mercy. It is also important to note that every judge, in every court, has avoided mentioning, let alone addressing, these matters in my applications for appeal – evidently not wanting to criticise the improper/illegal actions of a fellow judge, despite their level of responsibility to the course of justice. Please find attached a copy of my most recent Application for Appeal which, again, clearly shows the improper/illegal actions of the trial judge, and Victoria Police.
Statutory provisions and principles
A petition seeking exercise of the prerogative of mercy is a request by an individual to the Crown ‘seeking release from the effects of a conviction where all avenues of appeal have been exhausted or where the courts have no jurisdiction to review the conviction’.[11] The Governor has power to exercise the prerogative of mercy and, in accordance with s 87E(b) of the Constitution Act 1975 (Vic), does so on the advice of the Premier. In practice, the Premier seeks the Attorney-General’s advice before tendering advice to the Governor.[12]
[11]Zhong v Attorney-General [2020] VSC 302, [67] (‘Zhong’); Osland v Secretary, Department of Justice (2008) 234 CLR 275, 282 [8] (Gleeson CJ, Gummow, Heydon and Kiefel JJ) (‘Osland’).
[12]Zhong (n 11) [69]; Osland (n 11) 283 [8] (Gleeson CJ, Gummow, Heydon and Kiefel JJ).
A substitute for, or alternative to, the exercise of the prerogative power by the Governor is s 327 of the CPA, which reads:
327 Reference by Attorney-General
(1) If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of His Majesty’s mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General—
(a) may refer the whole case to the Court of Appeal; or
(b) may refer any point arising in the case to the judges of the Trial Division of the Supreme Court for their opinion.
(2) If the Attorney-General refers the whole case to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were an appeal by the person.
(3) If the Attorney-General refers a question to the judges of the Trial Division of the Supreme Court, those judges or any 3 of them must consider the point and provide the Attorney-General with their opinion.
(4) Nothing in this Chapter affects the prerogative of mercy.
Notes
1 Chapter 8 contains general provisions that apply to all criminal proceedings.
2 Clause 11 of Schedule 4 contains transitional provisions.
In the originating motion, Donohue sought to rely on Part 3 of the Members of Parliament (Standards) Act 1978 (Vic) (‘MPSA’), specifically s 13(1) and (3). Part 3 of the MPSA sets out a code of conduct that members of parliament must observe when carrying out their public duties. Section 13, which concerns personal conduct, provides:
13 Personal conduct
(1) A Member must ensure that their conduct as a Member does not bring discredit upon the Parliament.
…
(3) A Member must be fair, objective and courteous—
(a) in their dealings with the community; and
(b) without detracting from the importance of robust public debate in a democracy, in their dealings with other Members.
As to the effect of the code of conduct set out in Part 3 of the MPSA, s 5A provides:
5A Effect of Code of Conduct
The Parliament does not intend that the Code of Conduct—
(a) creates in any person any legal right or gives right to any civil cause of action; or
(b) affects in any way the interpretation of any Act or law in force in Victoria other than this Act.
The code of conduct is enforceable by parliament.[13]
[13]Members of Parliament (Standards) Act 1978 (Vic) s 31.
Donohue also sought to rely on the Parliamentary Administration Act 2005 (Vic) (‘PAA’) but did not give any detail of the provisions relevant to this proceeding. The purpose of the PAA is to provide a framework for good governance in the administration of the Parliament of Victoria, and its objects are directed at the administration of parliament.[14] The PAA concerns employment of ‘Parliamentary officers’ and proscribes certain ‘values’ for those officers,[15] but does not concern Members of Parliament nor the public duties they perform. Further, the values proscribed by the PAA do not create legal rights, give rise to any civil cause of action, or affect the rights and liabilities of Parliamentary officers.[16]
[14]Parliamentary Administration Act 2005 (Vic) ss 1, 3.
[15]Ibid ss 5(1)-(2), 6, pt 3.
[16]Ibid s 5(3).
Submissions
There was the following exchange at the hearing, with Donohue clarifying the nature of his proceeding and the relief he was seeking:
HIS HONOUR: … All right. I understood from reading the originating motion that what you were applying for was an order requiring the defendant to make a recommendation on the second petition; that is, to deal with it.
MR DONOHUE: And a recommendation that it be granted - a recommendation that the petition for mercy be granted, not just that they make a recommendation.
HIS HONOUR: Well, that goes to the merits of the petition for mercy.
MR DONOHUE: Absolutely.
HIS HONOUR: What’s the legal basis upon which you could obtain an order from this court requiring the defendant to recommend that the petition of mercy be granted?
MR DONOHUE: That all of the conditions, as I mentioned, from what they’d sent as the requirements for the petition for mercy have been met. All of the information that they required regarding miscarriage of justice, all regarding the wrongful conviction, all of detail that was asked for, a lot of detail was provided to the defendant.
HIS HONOUR: But, Mr Donohue, that presupposes that it must be accepted that your conviction was wrongful.
MR DONOHUE: Correct. Correct, Your Honour. And that’s what the situation has been since the beginning.
Donohue’s position was further clarified in the following discussion:
HIS HONOUR: So your case to the court in this proceeding is that you seek an order that the Attorney-General deal with the second petition of mercy by recommending to the Premiere that mercy be granted.
MR DONOHUE: For a petition of mercy. A petition granted. Or recommend that my matter be sent to an actual appeal and that a jury can actually see all of the evidence that should have been seen by the first jury. So I guess it’s the - asking for the fair go. The first case, the first trial, there’s a mountain of evidence, including in the actual court transcripts of my trial, that the jury was denied, dreadfully denied, key evidence, both by manipulation/withholding of Victoria Police, and also by the trial judge himself withholding evidence from the jury.
That’s all I’ve been asking for - for - since day 1 in each application for appeal. And once those failed, I then went to the first law officer for a grant of petition of mercy. The - the conditions on which I’ve asked for it have not changed.
Donohue said he had ‘repeated ad infinitum’ the details of the miscarriages of justice, wrongful conviction and withholding of evidence. He said that this was the basis of the five questions he posed to the Attorney-General set out in [26] above.
When Donohue commenced this proceeding, the relief he sought might have been understood as an order to compel the Attorney-General to make a recommendation to the Premier and/or Governor in respect of the exercise of the prerogative of mercy in the context of the second petition. The Attorney-General submitted that no duty to make such a recommendation was imposed by the common law or by either of the Acts relied upon by Donohue. Further, the Attorney-General submitted that while the better view is that neither the giving of advice in respect of the prerogative of mercy nor the powers under s 327 of the CPA are justiciable, it was unnecessary for me to determine the issue.[17]
[17]Holzinger v A-G (2020) 5 QR 314, 340 [75] (Sofronoff P, Morrison and Mullins JJA); Zhong (n 11) [30], [115]–[116].
Analysis
For the following reasons, it is unnecessary to determine whether the Attorney-General is subject to a duty to act on a petition of mercy, and if so whether a failure to act is justiciable.
First, the Attorney-General has now acted on the second petition by sending the petition to the Premier, and determining not to exercise the power in s 327 of the CPA to refer the petition either to the Court of Appeal to be heard as an appeal, or to the trial division of the Supreme Court for an opinion. To the extent that the proceeding should be understood as an application by Donohue for an order that the Attorney-General act on the second petition, the proceeding is moot.
Second, as is apparent from the second petition and Donohue’s oral submissions, the proceeding should be understood as an application for an order that the Attorney-General:
(a) recommend to the Premier and/or the Governor that the prerogative of mercy be exercised by granting the second petition; or
(b) exercise the power in s 327 of the CPA by referring Donohue’s case to the Court of Appeal for it to be dealt with as an appeal.
Donohue did not articulate the grounds on which he sought judicial review. His claim is simply based on the premise that it is beyond dispute that there were miscarriages of justice in his criminal trial, meaning his conviction was unjust and cannot be allowed to stand. While that is undoubtedly Donohue’s deeply held belief, there is no basis for an argument that the Attorney-General was obliged to reach a conclusion consistent with that belief when assessing the second petition. Donohue’s complaint is directed squarely at the merits, not the lawfulness, of the Attorney-General’s decision and is outside the scope of judicial review. There was material before the Attorney-General that was contrary to Donohue’s belief. In those circumstances, given the breadth of the discretion available to the Attorney-General, it is not possible to see how a ground of unreasonableness or irrationality could be made out.
Unsurprisingly, Donohue was unable to point to any legislative provision or authority supporting the imposition of a duty on the Attorney-General to act on the second petition in the manner he requested. No provision of the CPA, MPSA or PAA imposes such an obligation.
Conclusion
Donohue’s application for review of the Attorney-General’s decision on the second petition is without merit and must be refused.
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