Johnson v Parole Board Queensland
[2023] QCA 63
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Johnson v Parole Board Queensland[2023] QCA 63
- Add to List
Johnson v Parole Board Queensland[2023] QCA 63
Johnson v Parole Board Queensland[2023] QCA 63
SUPREME COURT OF QUEENSLAND
CITATION: | Johnson v Parole Board Queensland [2023] QCA 63 |
PARTIES: | RODNEY JOHN JOHNSON (appellant/applicant) v PAROLE BOARD QUEENSLAND (respondent) |
FILE NO/S: | Appeal No 12048 of 2022 SC No 2729 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal/Application for Extension of Time |
ORIGINATING COURT: | Supreme Court at Brisbane – [2020] QSC 108 (Bradley J) |
DELIVERED ON: | 6 April 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 March 2023 |
JUDGES: | Mullins P and Bond JA and Gotterson AJA |
ORDER: | Extension of time for filing notice of appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant/applicant, a prisoner, sought to appeal the decision to dismiss his application for judicial review of the respondent’s decision to refuse his application for parole – where the appellant/applicant required an extension of time for filing the notice of appeal – where the Court had regard to the prospects of success of the appeal – where the appellant/applicant does not identify any specific error by the learned primary judge – where the appellant/applicant does not advance any viable ground of appeal – whether an extension of time for filing the notice of appeal should be granted Uniform Civil Procedure Rules 1999 (Qld), r 748 |
COUNSEL: | The appellant/applicant appeared on his own behalf S Robb for the respondent |
SOLICITORS: | The appellant/applicant appeared on his own behalf Parole Board Queensland Legal Services for the respondent |
- [1]MULLINS P: I agree with Gotterson AJA.
- [2]BOND JA: I agree with the reasons for judgment of Gotterson AJA and with the order proposed by his Honour.
- [3]GOTTERSON AJA: On 10 March 1997, Rodney John Johnson pleaded guilty to the murder of his partner and three of the four children of her earlier marriage and to the attempted murder, and the rape, of the fourth child of that marriage. All offences were committed on 27 November 1995.
- [4]Mr Johnson was convicted on all counts. He was sentenced to life imprisonment on each of the four counts of murder and to 14 years imprisonment on the count of rape. A declaration was made that he had served 401 days in custody up to the date of sentence.
- [5]Having served 13 years in custody, Mr Johnson became eligible for parole on 3 February 2009. He made several applications for parole between 19 September 2013 and 3 September 2018. Each was refused.
- [6]The application made on 3 September 2018 was considered by the Parole Board Queensland (“the Board”) on 13 December 2018. By correspondence dated 18 December 2018, it wrote to Mr Johnson advising him of its preliminary view not to grant parole and inviting further submissions from him.
- [7]On 7 January 2019 Mr Johnson requested a Statement of Reasons for the Board’s “decision” and, in fact, filed an application in the Supreme Court of Queensland against the Board in respect of it on 12 March 2019. However, it was not until 2 April 2019 that the Board decided to refuse the application for parole. Mr Johnson was so advised by correspondence dated 3 April 2019. A Statement of Reasons was provided to him on 8 August 2019.
- [8]Despite the prematurity, and apparent irregularity, in the commencement of the proceeding, on 12 June 2019, Mr Johnson was ordered to file an amended application for a statutory order of review of the refusal decision made on 2 April 2019. The matter then proceeded to a hearing before a judge of the Trial Division on 5 February 2020. By order made on 11 May 2020, the application for judicial review was dismissed.
The appeal to this Court
- [9]On 5 October 2022, Mr Johnson, who at all times has acted for himself, filed two documents in this Court. One is a Notice of Appeal in Form 64 and the other is an Application to the Court in Form 69. In both documents, he is named as Appellant and the Board as Respondent. In both he seeks to challenge the decision to dismiss his application for judicial review.
- [10]The document in Form 69, which is more detailed than the other, describes the orders sought as the setting aside of that decision and the remittal of the matter to the Board “for further consideration according to law”. That document lists the grounds of appeal as follows:
“(1) Corrective Services Policy not followed under the JR Act Qld (s 20) and (s 23).
- (2)Procedural fairness under JR Act.
- (3)Improper exercise of power under Judicial Review Act (s 23f).
- (4)Disregard of the rules and merits of my case under JR Act.”
- [11]Rule 748 of the Uniform Civil Procedure Rules 1999 requires that a notice of appeal be filed within 28 days after the date of the decision appealed from unless this Court orders otherwise. The two forms to which I have referred were filed more than two years after 11 May 2020. Mr Johnson has at no point applied for an order permitting him to file them out of time. Notwithstanding, it remains a question for this Court whether it will make such an order and thereby regularise the commencement of an appeal. In considering that question, the Court need have regard to the prospects of success of the appeal. I now turn to that.
The decision under appeal
- [12]The learned judge at first instance delivered comprehensive reasons for judgment in which he analysed the grounds of review advanced by Mr Johnson.
- [13]As to the unreasonableness ground, his Honour observed that “[t]he matters in the statement of reasons, noted above, make it impossible to conclude that the Board’s decision lacked an evident and intelligible justification when all the relevant matters were considered.”[1] After acknowledging that Mr Johnson might consider that the Board gave too much or too little consideration to discrete information, he expressed the conclusion that “the Board’s decision was rationally open on the relevant material before it for consideration”.[2]
- [14]A further ground of review alleged a failure on the Board’s part to take into account the contents of an exit report issued on completion by him of a High Intensity Sexual Offending Program (HISOP) in January 2013. His Honour concluded that the Board did take it into account. He said:
“The statement of reasons, at paragraph 8, includes an extract from the HISOP completion report and notes the program facilitator’s opinion. The Board has not overlooked the matter in making its decision.”[3]
Further, his Honour noted that whereas Mr Johnson might think that insufficient weight was given to the exit report, that was “a matter going to the merits of his parole application and not a ground for judicial review”.[4]
- [15]With respect to Mr Johnson’s contention that the Board inflexibly applied a policy, his Honour found that “[g]iven the range of reports considered by the Board…I am unable to conclude that the Board applied the policy asserted by Mr Johnson or followed Dr Sundin’s opinion[5] without considering alternate views expressed by other experts who have worked with Mr Johnson”.[6]
- [16]With regard to Mr Johnson’s natural justice (or procedural fairness) ground of review, his Honour observed that “Mr Johnson does not identify any aspect of the Board’s decision-making process that involved a possible denial of natural justice”.[7] His Honour noted that Mr Johnson was given notice of the Board’s preliminary view and invited to make submissions. He was not satisfied that there had been a breach of the rules of natural justice in relation to the Board’s decision.[8]
- [17]Having found that Mr Johnson had not established any of the grounds on which he sought to challenge the Board’s decision to refuse his parole application, the learned judge at first instance expressed his ultimate conclusion that the application for judicial review should be dismissed.[9]
Mr Johnson’s submissions
- [18]As a prelude to reviewing Mr Johnson’s submissions, I note that the grounds of appeal set out above do not identify any specific error on the part of the learned primary judge. Moreover, Grounds 1, 3 and 4 are cast in language which appears to be directed at the Board’s decision-making processes in arriving at the refusal decision rather than at his Honour’s decision on judicial review of that decision.
- [19]On 5 October 2022, Mr Johnson also filed an affidavit sworn by him to which he exhibited a composite document. This document is comprised of 22 pages of handwriting titled “Submissions and Arguments”, a 12-page Parole Board Assessment Report relating to him dated 19 October 2018 and certain historical correspondence written on his behalf by lawyers at Prisoner’s Legal Service Inc. to the Board and to him.
- [20]In addition, Mr Johnson filed a nine page handwritten document titled “Arguments” on 31 January 2023. As well, he filed a five page handwritten document also with the title “Submissions and Arguments” on 28 February 2023. That followed the filing by the Board of its Outline of Submissions in this matter on 17 February 2023.
- [21]Given that Mr Johnson is not legally represented, I propose to have regard to both handwritten documents in order to discern in what respect or respects he contends that the learned primary judge erred in his decision.
- [22]The first document does not refer to his Honour’s reasons for decision. It does not identify specific aspects of, or steps in, these reasons and then subject them to criticism, let alone analysis.
- [23]This document sets out verbatim large tranches of text taken from other documents including the Board’s Statement of Reasons for the refusal decision, the Ministerial Guidelines to the Board and the historical correspondence to which I have referred. It suggests that Mr Johnson was under the misapprehension that this Court would be entertaining his parole application anew.
- [24]I would mention that this document does refer to the decision in Calanca v Queensland Parole Board[10] in which an application for judicial review of a parole refusal decision was set aside in circumstances where the Board had not complied with a provision (the then paragraph 5.6) of the Ministerial Guidelines to the Board issued pursuant to the provisions of the Corrective Services Act 2006. That provision was set out in Guidelines issued on 23 August 2012. However, it cannot avail Mr Johnson because it was not contained in replacement Guidelines which were issued on 3 July 2017[11] and well before his parole application the subject of the current proceedings was made.
- [25]The second document is a lengthy critique of the Board’s Statement of Reasons with references to the opinion expressed by Dr Gavin Palk, forensic psychologist, whose report dated 3 October 2017 concerning Mr Johnson was also before the Board. No reference was made to the decision of the learned primary judge in this document.
- [26]The third document is largely based on the transcript of the hearing before his Honour. Various passages in it are referred to with commentary added. Again, there is no reference to, or criticism of, the reasons for decision at first instance.
- [27]Mr Johnson appeared by video link at the hearing of this application. He indicated that the case he wished to advance before this Court was as outlined in the documents to which I have referred. He expressed a concern that Dr Sundin’s report was about four years old when the Board considered it. He stressed that he had undertaken all the rehabilitation courses that were available to him in prison. However, he did not attempt to identify error in the reasons of the learned primary judge despite having been invited by the Court to do so.
Disposition
- [28]Mr Johnson has not advanced any viable ground of appeal. That is a cogent reason why this Court ought not extend time for filing the notice of appeal with the consequence that there is no valid appeal on foot. A further reason is that Mr Johnson is now eligible to re-apply for parole. If he does so, he may put before the Board any new material on which he would wish to rely.[12]
Order
- [29]For these reasons, I would propose the following order:
- Extension of time for filing notice of appeal refused.
Footnotes
[1] Reasons [35]; AB 61.
[2] Ibid.
[3] Reasons [39]; AB 62.
[4] Reasons [41]; AB 62.
[5] This is a reference to an opinion expressed by Dr Josephine Sundin in a Psychiatric Risk Assessment of Mr Johnson carried out by her on 6 February 2015.
[6] Reasons [48]; AB 63.
[7] Reasons [54]; AB 64.
[8] Reasons [55]; AB 64.
[9] Reasons [58]; AB 65.
[10] [2016] QSC 3; [2017] 1 Qd R 1.
[11] AB 173 – 181.
[12] Harrod v Queensland Parole Board [2017] QCA 215 at [6] per Mullins J.