Holzinger v Attorney-General[2020] QCA 165

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 25 September 2015 a jury found the applicant guilty of three counts of rape and four counts of indecent treatment of a child under 16 years.  An appeal against his convictions was dismissed by the Court of Appeal on 17 June 2016^[1] and on 18 August 2017 the High Court refused special leave to appeal.  On 12 March 2018 the applicant presented a petition to the Governor seeking a pardon or, alternatively, that his petition be referred to the Court of Appeal under s 672A of the Criminal Code (Qld).  On 26 September 2018 the Official Secretary to the Governor informed the applicant that the Governor had decided not to pardon him.  By letter dated 19 March 2019 the Attorney-General for the State of Queensland advised that she had determined not to refer his petition to the Court of Appeal.
2. [2]
   On 12 April 2019 the applicant applied under the Judicial Review Act 1991 (Qld) for review of the Attorney-General’s refusal to refer his case to the Court of Appeal.  On 29 October 2019 the application was removed to the Court of Appeal.  Section 672A of the Code provides:

“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—

1. (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

2. (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.”

3. [3]
   In Australia the original source of the power of a Governor of a colony to grant a pardon was in the Governor’s commission.^[2]  From 1879 there were permanent Letters Patent which conferred gubernatorial powers and these were supplemented by Royal Instructions which made express provision for the exercise of the prerogative of mercy.^[3]
4. [4]
   Since 1986 the source of a State Governor’s power generally is to be found in s 7(2) of the Australia Act 1986 (Cth) which provides, relevantly:

“ … all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.”

5. [5]
   Section 33 of the Constitution of Queensland 2001 (Qld) provides:

“The Governor is authorised and required to do all things that belong to the Governor’s office under any law.”

6. [6]
   Section 36 of that Act provides:

“(1) This section does not limit the operation of another Act.

3. (2)
   In relation to an offence against a law of the State, the Governor may grant the offender, in the name and on behalf of the Sovereign–

1. (a)
   a pardon, a commutation of sentence or a reprieve of execution of sentence for a period the Governor considers appropriate; or

2. (b)
   a remission of a fine, penalty, forfeiture or other consequence of conviction of the offender.

3. (3)
   The grant may be unconditional or subject to lawful conditions.”

7. [7]
   Section 18 of the Code provides:

“This Code does not affect the Royal prerogative of mercy.”

8. [8]
   Section 672A of the Criminal Code (Qld) was enacted in 1913 following the enactment in New South Wales of the Criminal Appeal Act 1912 (NSW) which copied the United Kingdom model.^[4]  There are similar, or identical, provisions in other Australian jurisdictions.^[5]
9. [9]
   The power conferred by s 672A is conferred upon the “Crown Law Officer”, a term that s 1 of the Code defines to mean the Attorney-General or the Director of Public Prosecutions.  The conferral of the power upon those officers reflects the theory of responsible government and the reality that, in every case, the Governor will act in accordance with advice.
10. [10]
    In Queensland it is the practice for the Attorney-General to ask her department to consider the petition and to make recommendations in relation to it.  Sometimes the advice of the Crown Solicitor is sought.  The Attorney-General then advises the Premier who, ultimately, tenders advice to the Governor.  On some occasions the Attorney-General’s advice may be considered by Cabinet before the Premier tenders her advice to the Governor.^[6]
11. [11]
    Because in Queensland the power to refer has, in recent years, almost always been exercised by the Attorney-General rather than the Director of Public Prosecutions, we shall refer only to her as the relevant repository of the power.
12. [12]
    The applicant submitted that a decision not to refer his case was a “decision of an administrative character made under an enactment”^[7] and that he is a “person aggrieved” because he is a person “whose interests are adversely affected by the decision.”^[8]
13. [13]
    The applicant submitted that his petition identifies a “breach of the Evidence Act 1977”, demonstrates the “unethical tactics of the Crown Prosecutor”, the “incompetence of his Counsel” and a “[f]ailure of police to properly investigate”.  He submits that, as a consequence, the Attorney-General had a duty to refer his case to the Court of Appeal pursuant to s 672A because these are matters that raise a “reasonable possibility” that there has been a miscarriage of justice.
14. [14]
    The Attorney-General for the State of Queensland has submitted that the application should be refused because her decision is not amenable to judicial review under Part 3 of the Act or, alternatively, because the applicant has failed to make out his grounds.
15. [15]
    Section 672A is applicable to convictions for a crime under a Commonwealth law.^[9]  The Attorney-General for the Commonwealth (“the Commonwealth”) has intervened and has submitted that the application should be dismissed upon the limited basis that the decision is not amenable to review on the grounds stated in the application.  The Commonwealth submits that it is not necessary to decide whether such a decision could ever be reviewed.
16. [16]
    A number of observations can be made about s 672A.  First, it offers the Attorney-General a number of possible ways to determine a petition.  She might:

    1. (a)
       advise the Governor, in the exercise of the prerogative of mercy, to pardon the convicted person;
    2. (b)
       advise the Governor, in the exercise of the prerogative of mercy, not to pardon the convicted person;
    3. (c)
       on her consideration of a petition, require assistance “with a view to the determination of the petition”, and, for that purpose, refer a point arising in the case to the Court of Appeal for its opinion under s 672A(b) and then, with the assistance of that opinion:
       1. advise the Governor, in the exercise of the prerogative of mercy, to pardon the convicted person;
       2. advise the Governor, in the exercise of the prerogative of mercy, not to pardon the convicted person;
    4. (d)
       refer the “whole case” to the Court of Appeal, which shall hear and determine it “as in the case of an appeal by a person convicted”.
17. [17]
    Second, the object of a pardon is to bestow an act of mercy irrespective of any legal considerations and to rectify a miscarriage of justice of a kind that a court is not equipped to deal with.  R v Bentley was an example of this kind of case.^[10]  Thus, pursuant to s 36 of the Constitution of Queensland 2001, the Governor might:

    1. (a)
       pardon the offender;
    2. (b)
       commute the offender’s sentence;
    3. (c)
       grant a reprieve of execution of the sentence for a period;
    4. (d)
       remit a fine, penalty or forfeiture;
    5. (e)
       make a grant of the foregoing kind with or without lawful conditions.
18. [18]
    Third, the exercise of the prerogative of mercy may involve a consideration of matters that are not justiciable because they are only relevant to a pure act of mercy or because they involve policy with respect to public demands or expectations or factors which depend upon information that does not rise to the level of admissible evidence.  It follows that the authority of the Attorney-General to advise the Governor upon the exercise of the prerogative of mercy cannot rationally be constrained by any statutory or common law criteria.  This is a consequence of the historical origins of the prerogative of mercy as a power that reposes within the personal discretion of the monarch.^[11]
19. [19]
    Fourth, any consideration of the statutory power to refer is invoked “on the consideration of any petition for the exercise of the pardoning power”.  That linkage is important because it means that referring a case is but one of the options that the Attorney-General has “with a view to the determination of the petition”.
20. [20]
    Consequently, any consideration of the question whether to refer a case must arise within the context of a consideration of the petition as a whole, which includes a consideration of matters that may strictly only be relevant to the other available ways in which to determine a petition.  For that reason, factors that are relevant to a refusal of a pardon, for example, may also be relevant to deciding whether to refer a case because a decision to refer the whole case is also a decision to advise the Governor not to pardon.
21. [21]
    In this respect, it is important to bear in mind the observation of Gummow, Hayne, Callinan and Heydon JJ in Mallard^[12] that provisions like s 672A:

“… [provide] effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions.”

22. [22]
    Section 672A therefore meshes the Attorney-General’s unconstrained authority to tender advice about whether or not to grant a pardon with the exercise of the power of referral.
23. [23]
    Fifth, s 19 of the Criminal Appeal Act 1907 (UK) was enacted to meet a particular problem.  This was the problem revealed by the strange case of Adolf Beck.^[13]
24. [24]
    A man named John Smith had been convicted in 1877 in England for frauds that he had perpetrated upon several women.  His method was to pretend that he was “Lord Willoughby”.  By inducing women to believe that he was rich, he was able to persuade them to part with money and valuable pieces of jewellery.  After serving his sentence he was released.  Some years later, several women complained that they had been defrauded in a manner that was identical to the methods that Smith had used.  A number of victims identified Adolf Beck as the offender.  A witness came forward and identified Beck as the same man who, under the name Smith, had been convicted previously.  Even the constable who arrested Smith identified Beck as the same man and another police officer who had been involved in Smith’s arrest also came forward to identify Beck as Smith.
25. [25]
    Beck’s defence was that the same man who had committed the earlier offences, Smith, had committed the offences charged against Beck and that Beck had committed none of them.  His counsel attempted to lead handwriting evidence to show that Smith had committed both sets of offences.  His case was that a comparison of incriminating documents relating to each set of offences would show that the same man had committed all the offences but there was evidence to prove conclusively that Beck could not have committed the first set of offences because he had been abroad at the time.  The judge upheld an objection to the admissibility of this evidence.  He held that the question whether Beck was or was not the man who had been convicted of the earlier offences was inadmissible, the identity of that offender being a collateral issue that might mislead the jury.  The result was that Beck’s defence was taken away from him.  The jury was therefore denied the opportunity to infer that all crimes had been committed by one person and that, upon proof that Beck could not have committed the first set of offences, to find that he could not be guilty of the charged offences.  Beck was convicted and, as a result of Smith’s earlier conviction which was attributed to him, he was treated as a repeat offender in the course of his imprisonment.
26. [26]
    There was no statute at the time conferring any right of appeal.  Beck immediately submitted a petition for mercy on the ground that there had been a mistrial.  This petition and several later petitions were refused.  Another petition submitted by Beck’s solicitor resulted in the discovery that Smith had been medically examined while imprisoned and the doctor who had examined him had reported that Smith had been circumcised.  Beck was examined and it was discovered that he had not been circumcised.  The Home Office, which was the department of State that dealt with petitions for mercy, concluded that the relief that should be granted but only to the extent that Beck should no longer be classified as a repeat offender.  Otherwise, the petition was rejected.
27. [27]
    Beck was released upon serving his sentence.  In 1904, three years after his release, he was once more arrested on similar charges.  Once again a jury found him guilty.  However, before sentence was passed, Smith was arrested on similar charges committed while Beck was in custody.  Beck was released and granted a pardon for both sets of convictions.
28. [28]
    A Committee of Inquiry was established to examine the affair.^[14]  The Report of the Committee said:

“The fact that an innocent man could be not once only, but twice convicted, and that an application to the Home Office upon the first of such convictions could lead to no redress, naturally created grave misgivings in the public mind as to the nature and working of our system of criminal justice.”^[15]

29. [29]
    The Beck Committee examined the process by which Beck’s numerous petitions had been considered.  These petitions had been based upon the same evidence that the trial judge had rejected.  It was for this reason that the Home Office officials who dealt with the matter held the view that the subject matter of the complaint was exclusively within the jurisdiction of the trial judge and fell outside the bounds of the jurisdiction of the Home Office.  In short, the attitude of the Home Office was to assume the correctness of the judge’s ruling upon evidence despite the correctness of the ruling being the very substance of the petition.
30. [30]
    The Committee recommended a change in the law and this resulted in the creation of the Court of Criminal Appeal by the passing of the Criminal Appeal Act 1907 (UK).
31. [31]
    In relation to the practice of the Home Office, the Committee had before it a Note tendered by the Home Office to explain its procedures.^[16]  The Note stated that:

“… it has to be borne in mind that the Home Office is not a Court of Appeal, but that it merely advises the Crown in the exercise of the prerogative of mercy;  and that it is useless to attempt to re-try at the Home Office, on paper, cases already heard in open court before a jury.  The Home Office cannot hear counsel, does not see the witnesses, and cannot judge of their demeanour, and has no means of arriving at the truth by the method of cross-examination, and therefore any attempted re-trial of a case would necessarily be inferior in every way to the original trial.  Moreover, if the Home Office, standing in these points in a position of inferiority to the Court, were on slight pretexts to criticise the verdicts and attempt to re-open cases, it would soon lose the co-operation of the judicial bench, which is essential to the carrying out of its functions as the adviser of the Crown in the matter of prerogative.

… But, in spite of some exceptions, the broad principle remains that a case will not be re-opened merely in order to reconsider evidence which has already been fully examined at the trial.  If the plea is that the verdict is wrong, and if no new material evidence is offered, nor any means suggested by which new evidence can be obtained, the petition will, in ordinary circumstances, be refused.

… Further, it is constantly borne in mind that it is a matter of cardinal importance that the Home Office should act in co-operation with the judges; and a decided expression of opinion by an experienced judge on a case tried before him is hardly ever disregarded unless it clearly appears that there are strong grounds for believing him to be mistaken … it has to be borne in mind that any ill-considered action in opposition to the judges might deprive the Home Office in future of the friendly assistance it now receives …” (emphasis added)

32. [32]
    The deference of Home Office civil servants to the judges was understandable.  The officials in the Home Office lacked the qualifications to decide disputed questions of law unlike the trial judge, who was not only an expert but had a full appreciation of the trial that he had conducted.  The Home Office officials were, therefore, only interested in matters of fact which were capable of being grasped by non-lawyers and which might show them that a conviction was wrongful or doubtful.  However Beck’s case showed that this lack of analytical capability could result in a failure to perceive a miscarriage of justice.
33. [33]
    The referral power in s 19 of the Criminal Appeal Act 1907 (UK) offered the Home Office a means to deal with miscarriages of justice in cases that involved contested legal questions which the Home Office felt itself unqualified to resolve.  It was also a means to avoid embarrassment in dealings with judges upon whom the Home Office depended for information and advice about petitions.^[17]
34. [34]
    When the Criminal Appeal Bill 1911 (NSW) was debated during its second reading in the New South Wales Legislative Assembly,^[18] the Attorney-General said of the proposal to provide a power of referral:

“The prerogative of mercy remains unimpaired, but the Minister upon whose advice that prerogative is exercised is given the right, analogous to that given to the Home Secretary under the English act, of referring any difficult case to the court.  A Minister may say, “This is a matter which I find too complex, too difficult, for me to determine.  I am not going to take the responsibility of settling some violently-contested issue of fact about a prisoner who alleges he is innocent.  I shall remit this case to the court.””

35. [35]
    Whatever might have been the inadequacies of the Home Office in 1907 to make a judgment about the merits of a petition^[19] or the self-confidence of the Attorney-General of New South Wales in 1911 to make such judgments, the position of the Attorney-General in 2020 is not the same.  Irrespective of the formal qualifications of an incumbent of the office, the Attorney-General has a department of lawyers to assist her in formulating advice.  The Attorney-General does not have to obtain the judgment of the Court of Appeal in every case before coming to a view about a matter of law.
36. [36]
    Finally, the availability of a second right of appeal, through the medium of a referral, conflicts with the principle of finality of judgments.  That principle finds expression in such diverse manifestations as the immunity of perfected orders from variation otherwise than by a statutory right of appeal, the prohibition against raising points on appeal that could have been met by evidence at trial, the rule that parties are usually bound by the way the case has been conducted at first instance and the requirement that further evidence on appeal must be “fresh evidence”.  It finds expression in the interpretation of s 668D of the Code, which creates a right of appeal, as a provision that permits only a single appeal from a conviction; and it also finds expression in s 668E of the Code, which pays respect to the finality of a judgment because, according to the so-called “proviso” in s 668E, notwithstanding that the court is of the opinion that a point raised by the appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.  The prerogative of mercy and the power of referral of a case both clash with the principle of finality.  What is more, this conflict is acute because there is no time limit or other legal restraint upon making multiple successive petitions for mercy.^[20]  It is the task of the Attorney-General to resolve this conflict.
37. [37]
    The applicant’s application for a statutory order of review pleaded the following grounds:

“1. A breach of the rules of natural justice happened in relation to the making of the decision within the meaning of s 20(2)(a) of the Judicial Review Act 1991, in that:

1. The Applicant had filed a Petition for Mercy or Statutory referral on 10 March 2018 which enlivened the powers of the Respondent to make a decision as to whether the case should be referred to the Court of Appeal.
2. In a letter dated September 26, 2018 the office of the Governor of Queensland advised that the petition did not disclose any basis upon which the Governor could exercise his pardoning power under the Constitution of Queensland 2001.
3. In a letter dated 19^th March 2019, the Attorney-General advised, that on consideration of the Applicant’s petition, she had determined not to refer the whole case to the Court of Appeal, or to refer any point arising from the case to the Court for its opinion.  The Attorney-General stated it was her position that she is not required to give reasons for her decision.
4. The decision not to refer the whole case to the Court of Appeal is a breach of the rules of natural justice and procedural fairness and the Applicant has been denied a fair outcome.  There were no reasonable grounds to deny the Applicant the opportunity for the whole case to be referred to the Court of Appeal.

2. The decision was an improper exercise of the power conferred by the enactment of s 672A of the Queensland Criminal Code Act 1899 as defined in ss 20(2)(e) of the Judicial Review Act 1991 in that:

1. In her decision not to refer the whole of the case to the Court of Appeal, the Respondent has exercised a discretionary power without regards to the merits of the particular case [s 23(f) Judicial Review Act 1991]
2. The Petition for Mercy identified a number of significant breaches of law, including a breach of the Evidence Act Queensland 1977 Section 21AJ Presentation of Indictment and Section 572 of the Queensland Criminal Code Act 1899, which states that an indictment can be amended only if “no injustice will be done by amending the indictment”.  The amendment to the indictment after evidence was taken was significantly prejudicial and caused the applicant to be liable for a sentence of life imprisonment.  The decision not to refer the whole case to the Court of Appeal is an improper exercise of power [s 20(2)(e) Judicial Review Act 1991].  The decision was so unreasonable that no reasonable person could so exercise the power.  [s 23(g) Judicial Review Act 1991]
3. The Respondent failed to take a relevant consideration into account in the exercise of the power, contrary to s 23(b) of the Judicial Review Act 1991 by failing to fully consider the breach of s 21AJ of the Evidence Act 1977, and the relevance of s 572 of the Queensland Criminal Code Act 1899 in the conduct of the Applicant’s trial, the effect of such breach of law was a sentence of life imprisonment.

3. That there is no evidence or other material to justify the making of the proposed decision in that:

1. The Petition for Mercy identified a number of significant breaches of law, procedural unfairness and miscarriage of justice within the meaning of s 668E of the Queensland Criminal Code Act 1899.  There was no evidence or other material to justify making the decision not to refer the whole case to the Court of Appeal.” (emphasis in original)

38. [38]
    In support of these pleaded grounds of review, the appellant submitted that the Attorney-General “was bound to have regard to the reasonable possibility of a miscarriage of justice” (emphasis added).^[21]  He submitted that his petition raised such a possibility and, in the absence of any evident reasons why the case was not referred, it is to be inferred that the decision was affected by a failure to take into account a relevant consideration, by an error of law, and by legal unreasonableness.^[22]  The absence of reasons can immediately be put to one side for the Judicial Review Act 1991 (Qld) provides that reasons do not have to be given.^[23]
39. [39]
    Senior counsel for the applicant submitted that the decision by the Attorney-General to refuse to refer the case was amenable to review under the Judicial Review Act 1991 (Qld) because her decision was “a decision of an administrative character made … under an enactment”.^[24]  He submitted that the applicant was a “person aggrieved by a decision” because he was a “person whose interests are adversely affected by the decision”.^[25]  In oral argument, senior counsel submitted that the “interest” of the applicant that was adversely affected by the decision was “an asserted miscarriage of justice” and that the failure to refer the whole case to the Court of Appeal was “clear jurisdictional error, old fashioned central jurisdictional error”.
40. [40]
    A power conferred upon the Attorney-General by s 672A is a power to commence litigation.
41. [41]
    Before the establishment of the Court of Criminal Appeal in the United Kingdom, a person who had been convicted could have sought the fiat of the Attorney-General to obtain a writ of error.  This writ required the record of the trial court to be submitted to the Court of Queen’s Bench which would decide whether there was an error on the record.^[26]  The obsolete power to grant a fiat for the issue of a writ of error was held to be amenable to a writ of mandamus to compel its exercise.  In Ex Parte Newton^[27] Lord Campbell CJ said:^[28]

“If [the Attorney-General] refused to hear and consider the application for a fiat, we should compel him by mandamus to hear and consider it; but, when he has heard and considered, and refused, we cannot interfere.  The Attorney-General may be made responsible in Parliament.  If he has made an improper decision the Crown may and, if properly advised, will dismiss him; but we cannot review his decision.”

42. [42]
    Crompton J said:^[29]

“The Attorney General has exercised his discretion: and I think it clear that by the law the exercise of this branch of the prerogative is confided to him, and that we should trench upon his duty if we interfered with the exercise of his discretion.”

43. [43]
    Another instance is the power, which survives to this day, by which the Attorney-General issues a fiat to authorise a person to bring a relator action.  In Gouriet v Union of Post Office Workers^[30] the House of Lords emphatically rejected the proposition that the court could review the exercise of the Attorney-General’s discretion to consent to a relator action.
44. [44]
    The Attorney-General, as well as other officers of the Executive, possess numerous common law and statutory powers that, by their exercise, might result in there being litigation.
45. [45]
    In Barton v The Queen^[31] the High Court decided that the power of the Attorney-General to present an ex officio indictment, conferred by s 5 of the Australian Courts Act 1828 (Imp), was not amenable to judicial review.  Gibbs ACJ and Mason J said:

“The provision made by s. 5 is very different from an ordinary administrative discretion conferred by statute.  The section is a self-contained provision the scope of which is unaffected by other provisions in the statute.  It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted.  All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose.  The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case.  And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.”

46. [46]
    Murphy J said:

“The Attorney-General for New South Wales can issue an ex officio indictment although there has been no previous committal proceeding.  The decisions on this point are conclusive.

The Attorney-General is not examinable in any court for alleged absence of good faith or for considering extraneous matters in filing an indictment.”^[32]

47. [47]
    Stephen and Aickin JJ agreed with Gibbs ACJ and Mason J.  Wilson J said:

“It is clearly a statutory power.  It exceeds the customary prerogative power of the Attorney-General in respect both of the range of offences to which it applies, and of the repository of the power.  It extends to all indictable offences, thus including felonies within its reach, and it may be exercised by persons, other than the Attorney-General, authorized by the Governor to do so.  Nevertheless, it is a very distinctive type of statutory power, retaining in its relationship to the process of criminal justice something of the nature of a prerogative power.”^[33]

48. [48]
    In Clyne v Attorney-General (Cth) [No 2]^[34] the Full Court of the Federal Court held that s 71 of the Judiciary Act 1903 (Cth), which conferred a power upon the Attorney-General to decline to proceed further with a prosecution upon indictment, did not impose an enforceable duty upon the Attorney-General to receive and consider representations made on behalf of a person committed for trial that no further proceedings be taken.  The Court said:

“… the circumstances in which the courts would intervene depended upon the establishment of a legally enforceable right in the applicant.  It is the absence from the statute of any such legally enforceable right in the appellant in this case which is decisive of the question which now arises for decision.”^[35]

49. [49]
    In order to be amenable to review under the Judicial Review Act, the Attorney-General’s decision not to refer the case must be a “decision of an administrative character”^[36] made under an enactment and the applicant must be a person aggrieved by the decision because he is a person “whose interests are adversely affected by the decision.”^[37]
50. [50]
    A decision by the Attorney-General to present an ex officio indictment or to enter a nolle prosequi or, indeed, to instruct that civil proceedings be commenced, is not a decision of a kind to which the adjective “administrative” easily applies.  One reason why that may be so is that, unlike the usual “administrative decision”,^[38] a decision to commence litigation does not create rights, does not extinguish rights, does not impose liabilities, and does not impose a legal disability.  It is a decision to invoke the jurisdiction of a court.  The right that is to be vindicated by judicial process, or the liability that is sought to be declared, is a pre-existing right or liability, with immaterial exceptions.^[39]  As the Full Court of the Federal Court said in Clyne,^[40] and as the High Court observed in Osland,^[41] a petition of mercy is not based upon a claim of legal right but is an appeal to an executive discretion originating in the royal prerogative.^[42]
51. [51]
    This view of the discretion is consistent with the view expressed by Gibbs ACJ and Mason J in Barton as follows:

“The provision made by s. 5 [which conferred power to present an ex officio indictment] is very different from an ordinary administrative discretion conferred by statute.  The section is a self-contained provision the scope of which is unaffected by any other provisions in the statute.  It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted… i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose.  The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case.  And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.”^[43]

52. [52]
    In Maxwell v The Queen^[44] Gaudron and Gummow JJ observed that, while the prosecutorial discretion has, in earlier times, been regarded as part of the prerogative of the Crown, it is now necessary to acknowledge the existence of the Office of the Director of Public Prosecutions as a statutory office and that some formerly common law discretions are now conferred by statute.^[45]  Nevertheless, and despite the statutory source of the power, their Honours held that some decisions are, of their nature, not susceptible to judicial review.  Their Honours included in this catalogue decisions to prosecute, to enter a nolle prosequi, to proceed ex officio, whether to present evidence and the choice of criminal charges.  These are steps that the Attorney-General may take or not as she chooses, unconstrained by any accompanying duty.  The reason why decisions of that kind, although made under an enactment, are not susceptible to review under the Judicial Review Act is that the decisions are not of an administrative character.  They do not, of their own force and effect, “confer, alter or otherwise affect legal rights or obligations” but, rather, they invoke the jurisdiction of a court to vindicate pre-existing rights and liabilities.^[46]
53. [53]
    For the same reasons, the applicant in this case is not a person whose interests have been affected.  Having no right to a pardon,^[47] the Governor’s refusal to pardon the petitioner and, as part of the consideration of the petition of mercy, the Attorney-General’s refusal to refer the case, affect no interest of the petitioner.
54. [54]
    Junior counsel for the Attorney-General for the State of Queensland, Ms Nagorcka, cited the following two cases in support of her submission that the applicant’s case is otherwise unsustainable.  In Swan Hill Corporation v Bradbury^[48] Dixon J said:

“In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion.  The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves.  On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, …

But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument.  They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it.  This means that only a negative definition of the grounds governing the discretion may be given.  It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control.”  (emphasis added)

55. [55]
    In Water Conservation and Irrigation Commission (NSW) v Browning^[49] Dixon J addressed the difficulty faced by a person who wishes to challenge the exercise of an undefined discretion:

“The Commission is an administrative body entrusted with a full discretion.  A mandamus does not lie to it except to compel it to discharge a duty, in this case to consider the application and exercise its discretion to grant or refuse consent.  Prima facie some refusal to execute its duty must be shown.  Where an administrative body has given a decision in ostensible performance of its duty, it must be shown that nevertheless in truth the duty remains unperformed, so that the purported decision implied a refusal of the true duty.  In a case like this that can only be done if it is made to appear that the body acted upon grounds outside the purposes for which it was entrusted with a discretionary power or duty.”  (emphasis added)

56. [56]
    Ms Nagorcka submitted that these cases establish that the court will not find that a decision maker is bound to take into account any particular matter unless that is necessarily implied by the subject matter, scope and purpose of the Act.^[50]  She submitted that in cases like the present, in which a decision maker is a Minister of the Crown, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,^[51] due allowance may have to be made for the taking into account of broader policy considerations which may be relevant.  Ms Nagorcka submitted that the applicant’s case, that the Attorney-General was bound to refer a case once it has been shown that there was a reasonably arguable case of miscarriage, was inconsistent with the dicta quoted above.^[52]
57. [57]
    Those submissions must be accepted.
58. [58]
    Merely to state the applicant’s case shows that it is misconceived.  How could it be the duty of the Attorney-General to initiate litigation just because the materials show a reasonably arguable case?  If a case did not meet that minimal threshold it would, for that reason, be an abuse of process to commence litigation and, if litigation was commenced, the proceeding would be liable to be struck out as an abuse of process.^[53]
59. [59]
    The existence of a reasonably arguable case is a necessary condition for the proper commencement of litigation but it may not be a sufficient condition.  For example, s 669A of the Code confers upon the Attorney-General an “unfettered” right to appeal against a sentence.^[54]  But, acting properly, the Attorney-General must do more than be satisfied that there is an arguable case.  She must also be satisfied that an appeal against sentence is necessary to establish some matter of principle or to afford an opportunity for the Court of Criminal Appeal to perform its proper function in laying down principles for the guidance of sentencing courts.^[55]  Similarly, an indictment might raise a reasonably arguable case of guilt but its presentation might yet constitute an abuse of process so that further proceedings upon it will be stayed.^[56]  Section 672A would be unique if it operated so that the Attorney-General, not only may but, must refer a case to the Court of Appeal once she is satisfied only that the materials show an arguable case.
60. [60]
    The real position is not that the Attorney-General must refer a case if it is reasonably arguable; it is that the Attorney-General must not refer a case unless she is satisfied that it is reasonably arguable.
61. [61]
    As Gleeson CJ, Gummow, Heydon and Kiefel JJ observed in Osland,^[57] while a petitioner might place reliance on legal arguments, wider questions of justice and public policy might be relevant, including possible law reform, and compassionate grounds personal to the petitioner arising from the circumstances of a particular case.  Furthermore, relevant considerations may include legitimate political factors.^[58]  In this connection it is highly significant that the legislation provides that no reasons need be given for a decision of this kind, which would otherwise disclose all of the non-legal factors that bearing upon the formulation of advice to the Governor.^[59]
62. [62]
    In the case of a petition for mercy the Attorney-General would have to consider the requirement to ensure that her decision supports the maintenance of public confidence in the system of the administration of criminal justice.  This would require her to ensure, among other things, that any decision reflects a proper balance between the demands of finality and the alleviation of a miscarriage of justice.  The factors that would be potentially relevant to that aspect of the discretion cannot be identified in the abstract.  In this connection it may be relevant to consider the content of previous unsuccessful petitions as well as whether the point now raised might have been available at trial or on appeal.  Even if the point raised is an arguable one, it would be relevant to consider whether the case had any realistic prospects of success.
63. [63]
    There are other fundamental problems with the applicant’s case.  A referral of the case to the Court of Appeal is but one of the options that are open to the Attorney-General.  Upon being satisfied that there may have been a miscarriage of justice, whatever that degree of satisfaction might be, the Attorney-General might conclude that she wishes to have the assistance of the Court of Appeal upon a specific point in order to better determine the fate of the petition.  She might then act under s 672A(b).  A decision to do so will mean that the petition will remain within the purview of the Executive in contrast to a decision to refer the case, which will result in the case departing from the Executive sphere and entering permanently into the Judicial sphere.
64. [64]
    Section 672A cannot import a “test” which, if satisfied, requires the Attorney-General to refer a case because the implication of a statutory test of any kind is inconsistent with Swan, Browning and Peko.
65. [65]
    As Ms Nagorcka submitted on behalf of the Attorney-General for the State of Queensland, the content of s 672A does not permit a conclusion to be drawn, a priori, that any particular kind of matter will be relevant or irrelevant to be considered.  No doubt the question whether there may have been a miscarriage of justice will have to be taken into account.  However, the terms of the section do not justify an inference that the Minister is obliged to act once a petitioner has demonstrated a reasonable possibility that there has been a miscarriage of justice and that the Court will compel the Attorney-General to refer a case merely because the petition raises a reasonably arguable point.
66. [66]
    The relevant supervisory power of the Court in cases in which the Attorney-General exercises a power to commence proceedings by referral under s 672A or otherwise, to continue proceedings, to take steps in proceedings or to terminate proceedings is not to be found in a jurisdiction to review the decisions that led to those steps; it is to be found in the Court’s power to control its own process^[60] and not in a power to involve itself in the actual decision making even indirectly.
67. [67]
    It is necessary to consider the authorities that have considered whether the prerogative of mercy and the power of referral are amenable to judicial review and it is convenient to begin with the authorities from the United Kingdom.
68. [68]
    In de Freitas v Benny,^[61] an appeal from the Court of Appeal of Trinidad and Tobago, the Privy Council held that the prerogative of mercy was not amenable to judicial review.  Lord Diplock said that under the common law the exercise of the royal prerogative of mercy lay “solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion”.^[62]  His Lordship said:

“Mercy is not the subject of legal rights.  It begins where legal rights end.  A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy.  In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.”^[63]

69. [69]
    Eighteen years later, in R v Secretary of State for the Home Department, Ex parte Bentley^[64] the Divisional Court^[65] distinguished de Freitas v Benny and held that an exercise of the prerogative of mercy was reviewable in some cases.
70. [70]
    In Bentley the petitioner’s complaint was that the Home Secretary had a policy not to recommend the grant of a pardon unless he was satisfied that the petitioner was both morally and technically innocent of the crime.  Their Lordships held that the Home Secretary’s “[failure] to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range” meant that he had “failed to consider the form of pardon which might be appropriate to meet the facts of the present case” and this rendered his decision reviewable.^[66]  The ratio decidendi of the case is limited:

“The question is simply whether the nature and subject matter of the decision is amenable to the judicial process.  Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so?  Looked at in this way there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment.  If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.”^[67]

71. [71]
    However, two and a half years later in Reckley v Minister of Public Safety and Immigration (No 2)^[68] a differently constituted Privy Council^[69] reaffirmed the authority of de Freitas v Benny, and distinguished Bentley on the ground that it “was concerned with an exceptional situation” and held that an exercise of the prerogative of mercy was not judicially reviewable.
72. [72]
    Finally, five years later in Lewis v Attorney-General of Jamaica,^[70] another differently constituted Privy Council^[71] declined to follow Reckley and decided that the procedures followed in the process of considering a petition for mercy were amenable to judicial review.^[72]  Lord Hoffmann, who had been a member of the Privy Council that decided Reckley, dissented.
73. [73]
    In relation to the referral power itself, no party to this application cited any cases from the United Kingdom, where the statutory power of referral originated.  It has been settled in the United Kingdom that the statutory power to refer a case to the court was amenable to judicial review.^[73]  In R v Home Office, Ex parte Graham^[74] the issue for review was whether the decision maker had misunderstood the effect of s 2(1)(a) of the Criminal Appeal Act 1968 (UK).  In R v Secretary of State for the Home Department, Ex parte McCallion^[75] the question was whether the decision maker had fettered his discretion.  In R v Secretary of State for the Home Department, Ex parte Garner^[76] the issue was whether the exercise of discretion was unreasonable.  In R v Home Secretary, Ex parte Davis^[77] the question was whether the refusal to refer was “irrational”.
74. [74]
    In New Zealand, in Burt v Governor-General^[78] the appellant had been convicted of murder and his appeal against conviction had been dismissed.  He petitioned the Governor-General on the ground that there was exculpatory evidence that had been withheld from the defence.  He contended that the evidence would have raised a doubt about his guilt and might even have gone as far as establishing his innocence.  The Governor-General dismissed the petition.  The appellant then sought judicial review of that dismissal on the ground that the Governor General and the justice department had failed to act fairly or reasonably.  The respondent successfully applied to dismiss the proceeding on the ground that there was no jurisdiction to review an exercise of the prerogative of mercy.  On an appeal from that dismissal, the Court of Appeal of New Zealand held that the exercise of a prerogative power was not necessarily immune from review but that a challenge to an exercise of prerogative power could only be permitted in so far it raises issues of a kind with which the courts are competent to deal.^[79]
75. [75]
    In Horwitz v Connor^[80] the High Court held that the exercise of the prerogative of mercy is not judicially reviewable.^[81]
76. [76]
    In Eastman v Attorney-General (ACT)^[82] Lander J concluded that he was not prevented by Horwitz v Connor from deciding that “the processes which must be observed [in deciding whether to exercise the prerogative of mercy]… are subject to judicial review”.^[83]  On appeal the Full Court of the Federal Court doubted that the exercise of the prerogative of mercy could be reviewed but did not decide the point.^[84]
77. [77]
    Von Einem v Griffin^[85] was an application for judicial review that had been referred to the Full Court of South Australia.  The applicant had been convicted of murder.  He petitioned the Governor for the exercise of the prerogative of mercy and also requested that his case be referred to the Full Court pursuant to s 369(a) of the Criminal Law Consolidation Act 1935 (SA), which is the analogue to s 672A.  He complained that the Crown had failed to disclose exculpatory evidence and that this non-disclosure had occasioned a miscarriage of justice.
78. [78]
    The Attorney-General sought an opinion about the merits of the petition from a former District Court judge who was of the view that the verdict was not unsafe notwithstanding the non-disclosure.  Advice was also obtained from the Solicitor-General as well as comments from the Director of Public Prosecutions.  In due course, the Governor was advised to take no further action on the petition and acted accordingly.
79. [79]
    The applicant sought judicial review.  His case was that, in formulating the advice to the Governor, the Attorney-General had applied the wrong legal test and had failed to recognise or identify defects in the trial process and flaws in the forensic evidence led by the prosecution.  The applicant argued that the advice failed to take into account relevant considerations and took into account irrelevant considerations.  He submitted that there was no sufficient justification for the conclusion that there was no reasonable possibility that a miscarriage of justice had occurred.  The applicant sought an order quashing the Attorney-General’s decision to advise the Governor to take no further action and an order that the Attorney-General refer his case to the Full Court.
80. [80]
    Prior J held that to allow judicial review would involve intrusion by the court into an executive sphere not properly severed from but indeed referrable to the prerogative of mercy.^[86]  His Honour observed that, if bad faith or improper motive were made out, it might be appropriate to quash the improper exercise of discretion and require a reconsideration.  His Honour concluded that Horwitz bound him to hold that there was no power to review the exercise of the prerogative of mercy.^[87]
81. [81]
    Lander J said that s 369 did not create any legal rights and the submission of a petition did not give rise to any legal rights in a petitioner.^[88]  The section did not require the power to be exercised and the power was one that could be exercised if the Attorney-General “thinks fit”.^[89]  His Honour said that the discretion conferred by the section was “unconfined and uncontrolled”.  It was to be exercised in accordance with the Attorney-General’s advice to the Governor about how to exercise the prerogative of mercy and the formulation of the content of that advice, said his Honour, involved an even wider discretion.^[90]  Lander J said:

“It is probable, therefore, that, as presently advised, the prerogative of mercy is not subject to review, not because its source is the prerogative but because of the nature of the power itself.  The weight of authority seems to suggest so [citing Burt and Bentley].  However, as I say, there being no complaint about his Excellency’s refusal to exercise the prerogative of mercy, this court does not need to finally decide the matter.”^[91]

82. [82]
    As to the power conferred upon the Attorney-General, his Honour said:

“The statutory power given to the Attorney-General is entirely discretionary.  It is in the nature of a personal power.  The power is exercisable, as the section says, if the Attorney-General “thinks fit”.  The discretion is granted without qualification.  The discretion is entirely unconfined.  The discretion is to be exercised in the circumstances where the Attorney-General has to advise the Governor in respect of the petition for mercy.  That advice involves an even wider discretion.”^[92]

83. [83]
    His Honour also held that it would “be inappropriate for this court to review an unfettered discretion of the executive for the purpose of compelling the executive to bring a matter before the court.”  His Honour said that “[t]o do so, in a sense, would be to require the Attorney-General to initiate an appeal or to refer a point to this court” and that it “would put the court in the position of requiring a party to come before it”.  His Honour said that an order having such an effect would tend to impinge upon the independence and impartiality of the courts^[93] and it might result, in advance of any referral, in the court being seen as having a view about the merits of the case.
84. [84]
    In Secretary, Department of Justice v Osland^[94] the Court of Appeal of Victoria had to decide whether documents prepared for the purposes of the consideration of a petition for mercy were subject to legal professional privilege.  In the course of his reasons, Bongiorno AJA said:^[95]

“126 If the prerogative of mercy is indeed part of the criminal justice system at all, it is a part distinct in function and process from all that goes before it – from the filing of a charge in the Magistrates’ Court to the dismissal of an appeal by the High Court.  The function of the criminal justice system is to determine guilt or non-guilt, and, if applicable, to impose sentence; its process is open, public and examinable at almost every point.  It is only when that process is complete that the Sovereign can be petitioned to extend mercy to the person convicted.  Whether the prerogative is exercised or not is entirely within the province of the Sovereign advised by the executive government.  No question of legal rights is involved.  No reasons need be given for the decision taken, whether that decision is to exercise or not exercise the prerogative or to invoke or not invoke s 584 of the Crimes Act 1958 to involve this Court or the Trial Division of the Supreme Court in the process.  The decision itself is not reviewable, nor are the reasons, motives, or intentions of the Crown’s representative.” (footnotes omitted)

85. [85]
    Ashley JA agreed with Bongiorno AJA and Maxwell P did not consider the issue.
86. [86]
    On appeal to the High Court,^[96] the majority said, of this aspect of the case:

“It is not necessary for present purposes to decide a question about which there was some division of opinion in the Court of Appeal, that is to say, whether it is possible to obtain judicial review of a decision to refuse an executive pardon, or the related question whether it is possible to compel reasons for such a decision [citing Horwitz].  Although the topic was raised, it was not the subject of substantial argument.  The Victorian practice was described in a passage from the Tribunal’s reasons set out above, and it is clear that the general practice is that reasons for such decisions are not made public.  By hypothesis, a petitioner has exhausted his or her legal rights.  …  In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative.”  (emphasis added; footnotes omitted)

87. [87]
    In Pepper v Attorney-General^[97] the Attorney-General of Queensland applied to strike out an application under the Judicial Review Act 1991 (Qld) on the ground that the exercise of the prerogative of mercy was not reviewable.  Fryberg J delivered an ex tempore judgment in which he distinguished Von Einem on the basis that Von Einem was concerned with the exercise of the royal prerogative at common law while the case before his Honour was concerned with the pardon power which in Queensland, his Honour held, was conferred by s 36 of the Constitution of Queensland 2001 or the statutory referral power under s 672A of the Code.  His Honour concluded:

“The decision in Von Einem was not made pursuant to any statute such as the Judicial Review Act.  It took into account a number of historical considerations relating to the prerogative power of the Crown.  It referred to a number of cases which have seen some waning of the strictness with which the Courts refused to intervene in relation to such decisions but decided that the matter would not be one in which either it was appropriate or in which the Court was empowered to carry out the review.

In my judgment that is not a lot of help when considering the application of the Judicial Review Act to the decisions to which I have referred.

I can see no reason why the terms of the Act which appear to cover the case should not be applied to the present case.  There is, of course, a vast amount of historical material dealing with prerogative powers but I do not think it would be a productive use of the Court’s time to reserve my decision on this preliminary point to consider it all at length.

I doubt that any of it would persuade me to a different view ...”

88. [88]
    Von Einem in fact was concerned with a statutory power that was expressed in terms similar to s 672A.  As has been seen, Lander J expressly put aside, as a question that did not have to be determined, whether the royal prerogative of mercy was reviewable^[98] and then said:

“It is the statutory power which arises by reason of the petition for the exercise of the prerogative power which must be addressed and a decision reached as to whether that statutory power is subject to review.”^[99]

89. [89]
    Von Einem was, therefore, directly on point and should have been followed.^[100]  The decision was appealed but only on a limited ground concerning whether Fryberg J was wrong to order that the Attorney-General provide reasons.^[101]  It was held that he was.^[102]
90. [90]
    In Yasmin v Attorney-General (Cth)^[103] the applicant had been convicted of a Commonwealth offence and submitted a petition for mercy seeking referral of his case to the Court of Appeal of Western Australia under s 140 of the Sentencing Act 1995 (WA).  That provision is similar to s 672A of the Code.  Section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that, where a person has a duty to make a decision to which the Act applies and, there being no time limit for the making of a decision, the decision maker fails to do so, a person who is aggrieved by the failure can apply for an order to review.^[104]  The petition had been submitted in July 2014 and, by the date of the hearing of the application for review in February 2015, the petition had still not been dealt with.  The applicant sought an order that would require the Attorney-General to determine within 14 days whether he would refer the case to the Court of Appeal.  The respondent filed an objection to the competency of the application on the ground that the power to refer a case under the Western Australian equivalent to s 672A was not subject to review and the Attorney-General was under no duty to make a decision.^[105]  The sole issue was, therefore, whether the Attorney-General has a duty to decide a request for a referral contained within a petition and whether the Attorney-General could be compelled to perform that duty.^[106]
91. [91]
    Jagot J said:

“[45] It cannot be said that the power in s 140 is disconnected from the prerogative of mercy.  In terms, the provision contemplates that if a petition for the exercise of the prerogative of mercy is made, then the Attorney-General may refer that petition to the appellate court.  The provision does not establish a regime separate from the prerogative of mercy.  It provides the Attorney-General with another power if a petition requesting the exercise of that prerogative is made.  This context is important.  On the current state of the law, this context (in which the prerogative of mercy is beyond any form of judicial review) is relevant.  It speaks against the existence of a duty on the Attorney-General to do anything under s 140.

[46] There is nothing in the language of s 140 which suggests the existence of a duty, in contrast to an unfettered power or discretion available to the Attorney-General if a petition seeking the exercise of the prerogative of mercy is made.  Given the many other procedures available to enable appellate review of convictions by courts and the other powers available if such a petition is made, there is no apparent reason to construe the permissive language of the section as carrying with it an implicit duty.”

92. [92]
    Her Honour concluded that the section imposed no duty and was merely permissive.
93. [93]
    The Full Court of the Federal Court allowed an appeal from that decision.^[107]  As at first instance, the Full Court was not concerned to decide whether the provision carried with it an implied duty to make a referral under particular circumstances.^[108]  The issue was only whether there was a duty to consider the petition.
94. [94]
    The Court said:

“[69] Of its nature it is a power which affects the rights and entitlements of an individual.  It does so because a positive exercise will facilitate the Court of Appeal looking again at “the whole case” for and against the conviction of an individual, which in turn is capable of affecting whether the conviction is maintained, and thus the continuation of any sentence of imprisonment, or other punishment, still being served.  The legislative scheme contemplates that a mercy petition is treated as a request for a statutory process to be put in train which may affect the rights of the petitioner.  In that sense the power concerns the peculiar interests of a particular person rather than the vindication of a public right having regard to government policy. …

[70] Whilst it cannot be said that a petitioner is given by s 140 a legal right exercisable “subject only” to obtaining permission for the Attorney-General, Parliament has chosen to recognise in a petitioner an interest in having a conviction and sentence reconsidered through a public judicial process, so that an independent determination can be made whether there has been a miscarriage of justice.  To that extent, the following observation in Clyne v Evans has some force (at 521):

If the Attorney-General did not in such circumstances consider the application for a fiat or certificate the legal right of the applicant to proceed upon a writ of error or to appeal would have been frustrated.

[71] Here, the interest a petitioner has in access to a procedure available to correct a miscarriage of justice could be frustrated if the Attorney-General is not required to determine whether or not access to that procedure should be given.”  (citations omitted)

95. [95]
    The Court observed that both the referral power and the power to pardon had a role in encouraging public confidence in the criminal justice system and by providing for a way to correct miscarriages of justice without any time constraints.  The engagement of the Court of Appeal to determine an issue about a possible miscarriage of justice meant that any controversy about whether there had been a miscarriage of justice could be determined by a public and open process.  It followed that it would be inconsistent with that evident purpose to construe s 140 in a way that permitted the Attorney-General to allow a petition to lie undetermined by the executive.^[109]  The Court said:

“[117] We see no basis to infer Parliament intended such a result might await a petitioner seeking to have her or his conviction quashed.  The need to be able to correct a miscarriage of justice is a fundamental aspect of any system of criminal justice.  It is more than a function performed to secure the interests of the individual who has been affected by the miscarriage of justice.  It is integral to public confidence in the criminal justice system, and to ensuring the system operates fairly and within the law, while acknowledging that any system operates imperfectly and what is important is that there is always a capacity for correction.

[118] In our opinion Parliament intends that the Attorney-General, whether personally or through delegates, will consider and determine what, if any, action should be taken in respect of each and every petition seeking an exercise of the mercy prerogative and whether or not a referral under s 140 of the Sentencing Act is expressly sought.”

96. [96]
    In Martens v Commonwealth,^[110] which was decided after Von Einem but before Yasmin, and in Ogawa v Attorney-General (No 2),^[111] which was decided after Yasmin, Logan J held that the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied to a decision made pursuant to s 672A(a) of the Code^[112] in a way that would permit a decision to be challenged upon the grounds that the Attorney-General had failed to take into account relevant considerations and had taken into account irrelevant considerations as well as on the ground of unreasonableness.
97. [97]
    In Martens Logan J held that the decision maker was obliged:

“…to consider whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the Applicant.  Not to consider such evidence at all or to fail to evaluate it by reference to such a test would, in my opinion, be to fail to take into account considerations made relevant by the subject matter, scope and purpose of s 672A.  Were the evidence presented not, strictly speaking, “fresh”, as opposed to “new”, that circumstance would not, in itself, warrant a Minister to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence.”^[113]

98. [98]
    In Ogawa Logan J said that the role of the Attorney-General under s 672A:

“…was to determine whether … there was a reasonable possibility that there had been a miscarriage of justice”.^[114]

99. [99]
    His Honour said that, while the Minister was not obliged to refer cases that were “obviously untenable, frivolous or vexatious”, it was “not the role of a Law Officer to assume the role consigned by the legislation to that appellate court by deciding the fate of a reasonably arguable reference request in a petition”.^[115]
100. [100]
     The origin of the rubric chosen by the applicant as the crucial test, namely “reasonable possibility”, appears to be Logan J’s judgment in Martens.^[116]  His Honour noted that on an appeal against a conviction, when the ground is that there has been a miscarriage of justice and reliance is placed upon fresh or new evidence in order to establish a miscarriage, the test to be applied is to ask whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the evidence been before it.^[117]  This was the test stated in Mickelberg v The Queen^[118] by Mason CJ,^[119] Deane J,^[120] and Toohey and Gaudron JJ.^[121]  Logan J said that it was therefore relevant for the Minister to consider whether there was presented with the application “evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted”.^[122]  His Honour said that, in considering whether a referral should be made, the Minister ought not “usurp the role that was consigned to an appeal court in the event of a reference”.^[123]
101. [101]
     His Honour drew support for his test from the reasons of Lander J in Von Einem^[124] and in Ogawa his Honour said “the nature of the test [that the Attorney-General had to apply] was not free from judicial authority” because “it was considered by Lander J in Von Einem”.^[125]
102. [102]
     In Von Einem Lander J had concluded that the exercise of the discretion to refer a case was unexaminable and that the application had to be dismissed.^[126]  However, in case he was wrong in that conclusion, his Honour went on to consider the applicant’s case.  The applicant had submitted, inter alia, that the Attorney-General had “failed to apply the correct legal test”.^[127]  In Von Einem the Attorney-General had been advised that, unless the material referred to in the petition raised a sufficient doubt about the correctness of the decision, the appropriate response was to advise the Governor not to take any further action and that “the material would not raise such a doubt unless it appeared reasonably possible that a miscarriage had occurred.”^[128]  The Attorney-General accepted that advice.^[129]  The applicant argued that the Attorney-General should have acted upon the same basis as the test that is applied in order to determine whether to grant leave to appeal, namely to ask whether grounds of appeal were arguable.^[130]
103. [103]
     Lander J doubted whether the test proposed by the applicant was any less onerous than the test that the Attorney-General had applied.^[131]  In any case, his Honour said, “the question is not so much whether the appropriate test was asked, the question is whether, in the circumstances, the test was so unreasonable that no sensible person could have adopted it.”^[132]  The answer to that question, which was the only relevant question to be answered upon the false hypothesis that the decision was reviewable, was that the applicant had not established that the Attorney-General had acted unreasonably.^[133]
104. [104]
     Having regard to his conclusion that the discretion was not reviewable, it was impossible for Lander J to formulate any test that the Attorney-General had to apply.  That is why Lander J did not formulate one.
105. [105]
     In any event, the test whether there is a significant possibility that the jury might have acquitted is a test stated in the cases about fresh evidence on appeal as well as fresh and new evidence on an appeal by way of reference.^[134]  But it is not a test that can be applied to all cases of alleged miscarriages.
106. [106]
     Mickelberg was a case of fresh evidence.^[135]  Von Einem was not such a case.  It was a case of alleged wrongful prosecutorial non-disclosure.^[136]  The test applied in an appeal based upon that ground is not the same as the test that is applied when an appellant seeks to rely upon fresh or new evidence.  No inquiry is then made about whether a jury might have acquitted.  Because a wrongful failure by the prosecution is such a serious breach of the requirements of a fair trial, an appellate court will not ignore “even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure”.^[137]  In some cases of that kind, the irregularity will be regarded as having occasioned a miscarriage of justice unless the Crown can show that, had there been no blemish, the jury would inevitably have convicted anyway.^[138]  For this reason it has been said that the hurdle for an appellant in such cases is “a low one”.^[139]
107. [107]
     Eastman^[140] was a case about whether the petitioner had been fit to plead at his trial.  In such a case, if it is established by evidence that the petitioner was not fit to plead and stand trial, there has been no trial.  No question can arise then about a jury’s likely verdict.^[141]
108. [108]
     Ogawa was not a case about fresh evidence or new evidence.  It was a case in which it was alleged that there had been a miscarriage of justice because certain evidence had not been led.^[142]  If the failure to lead that evidence had been put forward as a ground of appeal, there would have been a need for the appellant to explain her own failure to adduce the evidence in cross-examination of Mr Young.  If that failure was due to incompetence of counsel, then the appellant would have needed to address the factors referred to in cases such as TKWJ v The Queen^[143] and Nudd v The Queen.^[144]  The Crown is obliged to call a witness whose evidence is relevant to the case, even if the evidence is inconsistent with the Crown case,^[145] but that does not mean that the prosecutor is obliged to elicit evidence from the witness that assists the defence.^[146]  Sometimes a prosecutor will not have to do anything more than call the witness in order to allow the defence the opportunity to elicit the exculpatory evidence.  The decision of a prosecutor not to call a witness or not to elicit evidence from a witness can only constitute a ground for setting aside a conviction if it constitutes misconduct which, when viewed as part of the conduct of the trial as a whole, gives rise to a miscarriage of justice.^[147]  In such a case there will have been a miscarriage of justice because the trial was unfair.^[148]  However, the consequence of a failure to observe the standards of fairness to be expected from the Crown may be insignificant in the context of an overall trial and that context has to be contemplated by any asserted ground raising unfairness of that kind.^[149]
109. [109]
     In short, to ask whether, but for the alleged failure to elicit evidence, “there was a significant possibility that the jury, acting reasonably, would have acquitted” if the evidence had been led, is material in only particular kinds of cases and, even then, it may not be sufficient on its own, if the question is answered in the affirmative, to demonstrate that there has been a miscarriage of justice.
110. [110]
     There is a further obstacle to an acceptance of the applicant’s case for review.  In Barton v The Queen^[150] the High Court had to decide whether the power conferred upon the Attorney-General of New South Wales by s 5 of the Australian Courts Act 1828 (Imp) to present an ex officio indictment was subject to judicial review.  The Court held that it was not.  In coming to that conclusion, Gibbs ACJ and Mason J said:

“It would be surprising if Parliament intended to make the Attorney’s information subject to review.  It has generally been considered to be undesirable that the court, whose ultimate function is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced …”^[151]

111. [111]
     Wilson J cited with approval the following dictum from R v Humphrys:^[152]

“A judge should keep out of the arena.  He should not have or appear to have any responsibility for the institution of a prosecution.  The functions of prosecutors and of judges must not be blurred.  If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.”^[153]

112. [112]
     In Maxwell v The Queen^[154] Gaudron and Gummow JJ said:

“It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review.  They included decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted.  The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.” (citations omitted)

113. [113]
     In Likiardopoulos v The Queen^[155] French CJ referred to the width and variety of factors which may legitimately inform the exercise of prosecutorial discretions including policy and public interest considerations.  His Honour said that it is not within the practical competence of courts to assess the merits of such factors and, in any case, such an assessment would lie outside the constitutional functions of courts.  His Honour observed that the statutory source of such discretions does not lessen these impediments to review.^[156]
114. [114]
     Barton and Maxwell both foreshadowed the decision of the High Court in Kable v Director of Public Prosecutions (NSW).^[157]  That case established that no function can be conferred on a State Supreme Court that might lead an ordinary member of the public to conclude that the Court was not independent of the executive government of the State.^[158]  Further, the Queensland Parliament cannot invest functions in the Supreme Court of Queensland that are incompatible with the exercise of federal judicial power.  In addition, the Queensland legislature cannot legislate in a way that would permit or require the Supreme Court, while exercising federal judicial power, to exercise executive power.^[159]
115. [115]
     The jurisdiction of the Court of Appeal of Queensland to consider cases referred to it pursuant to s 672A extends to a jurisdiction to consider a case that involves a conviction under a law of the Commonwealth.^[160]  When the Court considers such a case it is exercising federal jurisdiction.  Section 672A and the Judicial Review Act should not be construed so as to require the Supreme Court to involve itself in a decision by the Attorney-General whether to commence proceedings in the criminal jurisdiction of the Court of Appeal.  Ogawa shows how this can be the result of the application of the applicant’s proposed test.
116. [116]
     In Ogawa, one of the elements of the offence of which the applicant had been convicted was that she had intended the person to whom she had directed her threat, to “fear that the threat will be carried out”.  At the committal proceedings the person to whom the words were spoken, Mr Young, had agreed that when she made the threat the applicant “appear[ed] to be emotionally upset in the sense that she was tearful or crying”.  This piece of evidence was not led by the prosecution at the trial and the applicant submitted that this omission occasioned a miscarriage of justice.
117. [117]
     Logan J found that the evidence about the applicant’s demeanour meant that it was “arguable that the words used by Dr Ogawa were just an emphatic way of expressing frustration, devoid of threatening intent”.^[161]  Logan J held that the task of the Attorney-General of the Commonwealth, in deciding whether to refer a case to the Court of Appeal, was to “determine whether … there was a reasonable possibility that there had been a miscarriage of justice”.^[162]  His Honour held that the Attorney-General had applied the wrong test^[163] and that if he had applied the correct test the result would have been a different decision.^[164]  His Honour said that it followed that “Dr Ogawa’s application must, in my view, succeed”.  As a result, his Honour ordered, inter alia:

     1. (a)
        A writ of certiorari issue quashing the decision not to refer the case;
     2. (b)
        A writ of mandamus directed to the respondent issue requiring that the respondent consider the applicant’s request for the referral according to law.
118. [118]
     In order to comply with the Court’s order to consider the request for referral according to law, the Attorney-General had to apply the test that Logan J found, as a matter of law, to be the applicable test.  On the basis of the learned judge’s other conclusions, which bound the Attorney-General as a party to the litigation, he would be compelled to find that the test had been satisfied.  It would follow that the Attorney-General would be duty bound to refer the appellant’s case to the Court of Appeal.  The order to issue a writ of mandamus, although not framed in terms as mandamus to refer the case, was in this case tantamount to a mandamus directed to the Attorney-General to refer the case to the Court of Appeal.
119. [119]
     In our respectful opinion, those orders impermissibly constituted a judicial command to the executive to institute proceedings in the criminal jurisdiction of the Court of Appeal of Queensland.
120. [120]
     Not every review of the exercise of this discretion will have a result of that kind.  However, the outcome in Ogawa illustrates why the applicant’s case here cannot be accepted.  The proposition upon which it is based conflicts with principles that have been established since the decision in Ex parte Newton and which have been reaffirmed in Barton.
121. [121]
     We respectfully agree with the reasons of the Full Court of South Australia in Von Einem and with the reasons of Bongiorno AJA and Ashley JA in Osland.  For these reasons, the applicant has failed to establish that the decision of the Attorney-General was amenable to review.
122. [122]
     We dismiss the application with costs.