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  • Unreported Judgment

Schofield v Hopman (No 2)

 

[2017] QSC 324

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Rielly v Qld Parole Board [2017] QSC 324

PARTIES:

RIELLY, Mervyn James

(applicant)

v

QUEENSLAND PAROLE BOARD

(respondent)

FILE NO:

BS1382 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2017

JUDGE:

Brown J

ORDER:

The order of the court is that:

  1. The application is dismissed.
  2. There be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant was refused parole by the respondent – where the respondent had regard to various expert psychological evidence – where the respondent expressly stated that any expert evidence based on incorrect facts was not taken into account – where the respondent sought further clarification of expert opinion – where the respondent considered expert opinion reasonably open notwithstanding factual error – whether decision to refuse parole was an improper exercise of power – whether decision to refuse parole took irrelevant considerations into account

Judicial Review Act 1991 (Qld), s 20

Corrective Services Act 2006 (Qld), ss 193, 227

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

McGrane v Queensland State Parole Board [2012] QSC 350

COUNSEL:

The applicant appeared on his own behalf

M Woodford for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Law for the respondent

  1. This is an application for a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld).  The applicant seeks a review of the decision made by the Queensland Parole Board (“the Board”) on 11 November 2016 to refuse to grant the application of Mr Rielly for a parole order.

Background

  1. Mr Rielly is serving life imprisonment at Wolston Correction Centre. He became eligible for parole in 1988 and has made approximately 20 unsuccessful applications for parole.
  1. On 18 December 2015 the respondent made the decision to refuse his application for parole. Subsequently an application for a statutory order of review was filed on his behalf seeking review of that decision. The respondent subsequently rescinded its decision of 18 December 2015 and agreed to reconsider his application.
  1. On 11 November 2016 the respondent made a new decision to refuse his application for parole.

Person aggrieved

  1. There is no issue that the applicant, Mr Rielly, is aggrieved by the decision to refuse his parole.

Grounds of review

  1. The applicant seeks a review of the decision made on 11 November 2016 on the basis that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act 2006 (Qld) (“the Act”) in that the respondent took an irrelevant consideration into account within the meaning of s 20(2)(e) and s 23(a) of the Judicial Review Act.  The particulars of the complaint are, in a summary form, that:[1]
  1. The respondent took into account and relied upon psychiatric reports and opinions from Dr Kar and Dr Sundin that were premised on facts inconsistent with the facts upon which the applicant was convicted and sentenced;
  1. The respondent’s statement of reasons dated 29 December 2016 relies on opinions provided by Dr Kar in 2004 and 2007 regarding the applicant’s risk to the community.  Dr Kar’s reports are based on facts that are inconsistent with the facts upon which the applicant was convicted;
  1. In particular, Dr Kar asserted that there was forensic evidence that the murder victim’s genitals had been interfered with;
  1. The evidence in the criminal case did not indicate any evidence of the victim’s genitals being interfered with nor any sign of a sexual attack;
  1. As such, the respondent asserts that insofar as the respondent had regard to Dr Kar’s report at all it was an irrelevant consideration because it was based upon facts upon which he was not convicted.[2]
  1. Further insofar as it relied on an opinion by Dr Sundin, her report had taken into account the reports of Dr Kar and her 2015 report commented that “He denied a sexual component to the murder and continued to insistent [sic] that he had moved the woman’s underwear in order to find the source of bleeding.”  The report concludes that “he continues to minimise, justify and rationalise his offending behaviour”;
  1. The Board asked Dr Sundin whether, in the absence of evidence of sexual interference referred to in Dr Kar’s 2004 report and perhaps assumed in his 26 April 2007 report, her present opinion regarding the applicant’s suitability for parole was impacted.  Dr Sundin by a letter of 13 June 2016 responded to the Board that she placed little emphasis on Dr Kar’s opinion regarding parole issues given its historical nature and that her opinion was unchanged;
  1. While Dr Sundin placed limited reliance on Dr Kar’s opinion, her own opinion was tainted by inaccurate information about the circumstances upon which the applicant was convicted and in particular focused on his denial about his offending behaviour.  It is therefore asserted that Dr Sundin’s opinion was based on an irrelevant consideration because of her mistaken belief that there was a sexual element to the applicant’s murder offence when he was not convicted on that basis;
  1. As such, the respondent asserts that insofar as the respondent had regard to Dr Sundin’s report or opinion at all it was an irrelevant consideration.

Application for parole

  1. The Board relied upon the reports of Dr Kar of 27 July 2004 and 26 April 2007 in arriving at its decision of 18 December 2015 to refuse the application for parole. It accepted the assertion of fact that there was forensic evidence of interference with the victim’s genitals. That was expressly referred to in the letter of the Board to the applicant dated 13 October 2015 outlining its preliminary view.[3]  Relevantly that letter stated:

“Dr Kar appears to have had access to some relevant prosecution documents.  He commented that what you did not tell him was that the woman’s body was found in her bedroom, not in the shop; that her chest was crushed, with various rib fractures, she had bruising to the face; and there was forensic evidence of her genitals having been interfered with.

The psychiatrist concluded that you suffered from a very severe Antisocial Personality Disorder which had not mellowed over time.  It was noted that you denied there being a sexual element to any of the three offences mentioned.  Your level of dangerous was considered by the psychiatrist to be ‘extreme’.”

  1. Contrary to what was stated in Dr Kar’s 27 July 2004 report[4], the respondent concedes that there was no forensic evidence of injuries to the murder victim’s genitals, nor was it ever suggested or determined to be the case at the time that the applicant was sentenced.  It further conceded that the materials available to the Board did not disclose where Dr Kar obtained the information concerning the alleged forensic evidence of sexual inference. 
  1. Subsequently, the applicant issued an application for a statutory order of review. The Board revoked its decision on 27 May 2016 and the application was not determined, as the Board conceded it had taken evidence of sexual interference by Mr Rielly into account when there was no such evidence.
  1. In its statement of reasons dated 18 February 2016, the Board did not make any direct reference to Dr Kar’s incorrect assertion. Paragraph 8 of the reasons, however, incorporated the matters raised in the preliminary view letter. The respondent therefore accepted it had been considered as a relevant consideration.
  1. Dr Kar’s 2004 and 2007 reports were provided to and referred to by Dr Sundin. Dr Sundin was also provided with reports of Dr Moyle. 
  1. Following the rescission of its decision, the Board wrote to Dr Sundin advising of the absence of objective evidence to support Dr Kar’s assertion of sexual interference. The Board asked whether the absence of sexual interference by Mr Rielly, contrary to the contents of Dr Kar’s 2004 report, and perhaps assumed in his report of 26 April 2007, impacted upon her present opinion concerning the applicant’s suitability for parole.[5] 
  1. Dr Sundin replied on 13 June 2016 advising the Board that the opinion of Dr Kar was only one piece of material considered in her reports to the Board in 2012 and 2015 and she placed little emphasis on Dr Kar’s opinion with regard to current parole issues, given its historical nature. She indicated that her advice to the Board was unchanged.[6]
  1. The Prisoners’ Legal Service wrote to the Board on 19 July 2016 in response to the further correspondence of Dr Sundin dated 13 June 2016. In that letter, they submitted that the Board should place no weight on Dr Sundin’s opinion due to her reliance on facts which are inconsistent with the facts upon which Mr Rielly was convicted. The letter stated that the contents of her reports clearly illustrated that she was of the belief that the applicant’s murder offence was sexually motivated and that he sexually interfered with the victim. In that regard they identified extracts of Dr Sundin’s 2012 and 2015 reports in support of that view, which are discussed below.  The letter also stated that their client, the applicant, had not been interviewed by a psychologist or psychiatrist since his completion of recommended intervention programs in custody and requested that a fresh assessment as to the applicant’s risk to the community be conducted by a psychologist or psychiatrist who had not previously been provided with inaccurate information about his offences.[7] 
  1. That request for a new, independent assessment unfortunately was not taken up by the Board. The request appears a reasonable one in all the circumstances. However, while the applicant raised the matter in submissions it was not a matter which is the subject of the judicial review application by the applicant. Of itself it does not raise a ground of judicial review. That is not to exclude that possibility in the future.
  1. On 19 September 2016 the Board wrote to the applicant indicating that its preliminary view was that the applicant posed an unacceptably high risk to the community.[8]  The letter outlined the factors which the Board took into account and particularly the report of Dr Sundin and her conclusion that notwithstanding that the applicant had satisfactorily completed the High Intensity Sexual Offending Program she could not with any confidence recommend his release on parole.  The Board stated that it had specifically not taken into account any reference in any material contained on the file relating to an allegation of there having been a sexual element to the murder offence.  The Board stated it had only taken into account the murder alone, as well as the applicant’s previous serious criminal history.  It noted it had considered and rejected the request for a further clinical interview.  It also stated:

“The board also noted that Dr Sundin has previously included reference to an alleged sexual element in the murder.  The Board has been careful to thoroughly dissect the report, and upon that dissection has decided that her conclusions as to your psychiatric/psychological state were reasonably open to her to make, even disregarding the sexual element she erroneously took into account in her initial report.”

  1. Submissions were made on behalf of the applicant by the Prisoners’ Legal Service to the Board on 20 October 2016.[9]  It was again submitted that no weight should be placed on Dr Sundin’s report and that it was not possible for Dr Sundin to quarantine accurate information about Mr Rielly’s historical offences from inaccurate information about his current offence.  Further submissions were made in support of his application for parole. 
  1. On 15 November 2016 the Board wrote to the applicant stating that they declined his application having considered all the submissions raised on his behalf.[10]  The Board stated:[11]

“The Board had particular regard to your submissions regarding Dr Sundin’s views but has decided that in all the circumstances her opinion remains relevant.  The Board would also like to remind you that Dr Sundin was asked for an updated opinion on the basis of an absence of any sexual interference and ignoring the comments of an earlier report by Dr Kar.  Dr Sundin subsequently advised that upon her reconsideration, taking those matters out of consideration, her opinion remained the same.”

  1. A statement of reasons was provided by the Board on 29 December 2016.[12]  Relevantly those reasons stated:[13]

“13. The Board has specifically not taken into account any reference in material contained on the Applicant’s file relating to any allegation of any sexual element of the murder offence.  It is the murder alone that the Board has taken into account as well as the Applicant’s previous serious criminal history.

  1. The Board is aware that Dr Sundin did not interview the Applicant prior to completing her updated report.  However, given the circumstances surrounding the request for an updated report the Board concluded that a further clinical interview was not necessary, and that the relevant conclusions of the 2012 report remain valid.  The Board also noted that Dr Sundin has previously included reference to an alleged sexual element in the murder.  The Board was careful to thoroughly dissect the report and has decided that her conclusions as to the Applicant’s psychiatric/psychological state were reasonably open to her to make, even disregarding the sexual element she erroneously took into account in her initial report.” ( emphasis added)

 Did the Board take into account an irrelevant consideration?

  1. The relevant and irrelevant consideration grounds of judicial review only have application where the decision maker was bound to take or not to take the particular matter into account in making the decision under the statute conferring the decision making power.[14]
  1. Section 193 of the Act provides a broad discretion to the Board in deciding whether to grant or refuse an application for parole. Its terms are unconfined, as are the facts relevant to the exercise of that discretion.[15]
  1. Pursuant to s 227 of the Act, Ministerial Guidelines to the Queensland Parole Board have been issued. Those guidelines include the following:

“2.1 When deciding the level of risk that a prisoner may pose to the community, the Board should have regard to all relevant factors, including but not limited to, the following –

  1. any medical, psychological, behavioural or risk assessment report relating to the prisoner; …”
  1. If a matter put before the Board was without a proper factual basis or was incorrect in relation to the nature of the applicant’s offending, I consider that that could (although not necessarily would) constitute an irrelevant consideration.
  1. The applicant contends that the Board, in relying on Dr Sundin’s reports, took into account an irrelevant consideration, given her reliance on Dr Kar’s reports and that her own opinion was potentially tainted by being formed by reference to facts which were inconsistent with the facts upon which the applicant was convicted and sentenced.
  1. The respondent’s contention was that on a true analysis of the reports of Dr Sundin, which referred to the reports of Dr Moyle as well as Dr Kar, Dr Sundin’s reports did not act on the assumption that the applicant had sexually interfered with the murder victim, notwithstanding the reference to Dr Kar’s 2007 report and her having been provided with his report.
  1. Dr Sundin’s 2012 report did note the conflicting evidence as to whether there was a sexual component to the murder offence.[16]  She noted the absence of any reference by the sentencing judge to a sexual component in the crime.  In her report she also noted Dr Moyle’s concern as to the lack of collateral with regard to the concomitant details of the murder offence.[17]  It is clear from Dr Moyle’s report that he did not act on the basis that the applicant had sexually interfered with the murder victim and had, in fact, required that further information be provided to him in that regard.[18] 
  1. Dr Sundin also refers to the “vexed matter of the sexual component to the offence” and notes that Mr Rielly denied that he ever sexually interfered with the woman and had been challenged by a number of people as to the issue of the removal of the victim’s undergarments.[19]  She does however state that:[20]

“Despite the evidence of lifting of the nightgown, removal of the underwear and blood on the underwear together with very high levels of violence and strangulation in the final victim; Mr Rielly continues to deny any degree of sexual motivation.”

  1. In Dr Sundin’s 2015 report she states that:[21]

“He denied a sexual component to the murder and continued to insist that he had removed the woman’s underwear in order to find the source of bleeding.”

  1. The applicant relied upon the above statements as demonstrating that Dr Sundin’s report did rely on sexual interference with the victim. The respondent submitted that the above comments could be characterised as relating to the applicant’s motivation for the offending rather than relying on any actual sexual interference. There is no dispute that the victim’s underwear had been removed. While it is a finely balanced matter, the above statements could be construed as arising from the removal of underwear as opposed to relying on sexual interference.
  1. That interpretation is supported by Dr Sundin clarifying to the Board in her letter of 13 June 2016 that her opinion did not rely on the reports of Dr Kar and evidence of sexual interference and that her advice to the Board did not change in the absence of such evidence.
  1. In any event, the Board expressly acknowledged that it had examined Dr Sundin’s reports to determine whether her views were reasonably open “even disregarding the sexual element she took into account in her first report”.
  1. The Board has specifically stated that it disregarded any suggestion of sexual interference in its assessment. In making its decision of 11 November 2016, the Board acknowledged that Dr Kar’s report, insofar as it suggested the applicant had sexually interfered with the murder victim, was incorrect. It expressly stated that it did not take into account any reference to the material contained on the applicant’s file suggesting there was a sexual element to the murder offence. Further, the Board was conscious to examine her report to satisfy themselves that her opinions were reasonably open absent a finding of a sexual element in the murder and to clarify with her whether her opinion changed absent such evidence.
  1. Given the Board’s consciousness of the absence of evidence of sexual interference and the Board expressly stating that it did not take it into account, either alone or through Dr Sundin’s reports noting evidence of sexual interference, there is no basis for the Court to find to the contrary. In these circumstances, the Board did not by having regard to Dr Sundin’s reports take into account an irrelevant consideration.
  1. In all of the circumstances the ground of irrelevant considerations is not made out and the application is dismissed. The Crown did not pursue costs against the applicant and I therefore make no order as to costs.

Footnotes

[1]  Application at [1(c)]-[1(l)].

[2]  The application erroneously refers to the report of Dr Kar being based upon facts upon which the applicant was convicted.  This error was evident from submissions and the applicant’s case proceeded on the basis of the complaint that the report of Dr Kar was not based on the facts upon which the applicant was convicted.

[3]  Report of Dr Sundin, 7 August 2015, pp 158-161: CL-34 affidavit of C Lindsey.

[4]  And which is said to have perhaps been assumed in his 26 April 2007 report.

[5]  CL-16 affidavit of C Lindsey, p 100.

[6]  CL-14 affidavit of C Lindsey.

[7]  CL-11 affidavit of C Lindsey, pp 92-94.

[8]  CL-2 affidavit of C Lindsey, p 54.

[9]  CL-3 affidavit of C Lindsey, pp 56-61.

[10]  CL-4 affidavit of C Lindsey, p 62.

[11]  CL-4 affidavit of C Lindsey, p 62.

[12]  CL-5 affidavit of C Lindsey, pp 63-75.

[13] In this regard I note that [6]-[8] and [11]-[12] refer to the reports of Drs Kar and Sundin.

[14] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J. 

[15] McGrane v Queensland State Parole Board [2012] QSC 350 at [15].

[16]  CL-41 affidavit of C Lindsay, pp 195 and 197.

[17]  CL-41 affidavit of C Lindsay, p 201.

[18]  CL-100 affidavit of Lindsey, at p 475, particularly pp 484, 492 and 505.

[19]  CL-41 affidavit of C Lindsay, p 207.

[20]  CL-41 affidavit of C Lindsay, p 222.

[21]  CL-41 affidavit of C Lindsay, p 159.

Editorial Notes

  • Published Case Name:

    Schofield v Hopman & Anor (No 2)

  • Shortened Case Name:

    Schofield v Hopman (No 2)

  • MNC:

    [2017] QSC 324

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    20 Dec 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 324 20 Dec 2017 -

Appeal Status

No Status