Neyens v President, Parole Board Queensland
[2024] QCA 208
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- Neyens v President, Parole Board Queensland[2024] QCA 208
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Neyens v President, Parole Board Queensland[2024] QCA 208
Neyens v President, Parole Board Queensland[2024] QCA 208
SUPREME COURT OF QUEENSLAND
CITATION: | Neyens v Michael Byrne KC, President of the Parole Board of Queensland [2024] QCA 208 |
PARTIES: | PETER NEYENS (appellant) v MICHAEL BYRNE KC, PRESIDENT OF THE PAROLE BOARD OF QUEENSLAND (respondent) |
FILE NO/S: | Appeal No 383 of 2024 SC No 6185 of 2023 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2023] QSC 296 (Bowskill CJ) |
DELIVERED ON: | 5 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 May 2024 |
JUDGES: | Bond and Boddice JJA and Callaghan J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where the appellant was convicted of murdering two people and sentenced to life imprisonment – where the appellant was a “restricted prisoner” and the respondent made a “restricted prisoner declaration” under the Correctives Services Act 2006 – where the effect of the declaration was that the appellant’s application for parole was refused and the appellant was disentitled from applying for parole while the declaration remained in force – where the appellant sought judicial review of the respondent’s decision on the ground that it involved an error of law and the primary judge dismissed the application – whether the primary judge erred in construing s 175H(2) of the Corrective Services Act 2006 as not requiring the respondent to consider whether parole conditions or any other matters would mitigate the appellant’s risk Corrective Services Act 2006 (Qld), s 175D, s 175E, s 175G, s 175H, s 175I, s 175J, s 193AA, s 200 |
COUNSEL: | A D Scott KC, with L D Reece, for the appellant J M Horton KC, with S A Amos, for the respondent |
SOLICITORS: | Prisoners Legal Service for the appellant Parole Board Queensland Legal Services Unit for the respondent |
- [1]BOND JA: In May 2002, the appellant was convicted of murdering two people and sentenced to life imprisonment.
- [2]In December 2021 amendments were made to the Corrective Services Act 2006 (Qld) (the Act) which affected the ability of prisoners in the position of the appellant to obtain parole under the Act. The relevant provisions are contained in Division 1 of Part 1AB of Chapter 5 of the Act.
- [3]The appellant fell within the definition of “restricted prisoner” set out in the new s 175D of the Act. Accordingly, pursuant to s 175E of the Act, the respondent, as president of the Parole Board Queensland (the parole board), had jurisdiction to make a “restricted prisoner declaration” in relation to the appellant.
- [4]On 3 March 2023, the respondent made such a declaration. Pursuant to s 175I of the Act, the effect of the declaration was that the appellant’s then extant application for parole was taken to have been refused. Further he became disentitled from applying for parole again while the declaration was in effect. In his case the declaration took effect on 4 March 2023 and continues until 4 September 2026.
- [5]The appellant sought judicial review of the respondent’s decision on the ground that it involved an error of law. The Chief Justice was not persuaded that the respondent had erred as alleged and dismissed the application.
- [6]The appellant contends that the Chief Justice erred in construing s 175H(2)(b) of the Act “… as not requiring the Respondent to consider whether parole conditions or any other matters would mitigate the Appellant’s risk.” He seeks to have the orders made by the Chief Justice set aside, the application for judicial review allowed and to have the restricted prisoner declaration set aside so that the respondent could be required to reconsider his decision in accordance with what the appellant contends is the law.
- [7]For reasons which follow, I conclude that the Chief Justice did not make the alleged error. The appeal should be dismissed. As the respondent did not seek costs, each party must bear its own costs.
The legislative framework
- [8]The Chief Justice’s reasons at [3] to [19] summarised the relevant aspects of the operation of the Act in relation to a person who falls within the definition of “restricted prisoner” and the policy objective of the legislative scheme. I would adopt her Honour’s summary and not reproduce it here.
- [9]Given the narrow issue on which the present appeal turns, it is necessary only to record the following aspects of the legislative framework.
- [10]First, where, as here, a restricted prisoner has made an application to the parole board for parole, unless the president has previously decided not to make a restricted prisoner declaration, s 193AA(2) provides that the parole board must:
- give the president a notice stating that the prisoner has applied for parole; and
- give the chief executive a notice stating:
- the board has deferred deciding the application until the board receives notice from the president under s 175J(2)(c) (i.e. a notice that the president has decided not to make a restricted prisoner declaration about the restricted prisoner); and
- under s 175F the chief executive must give the president a restricted prisoner report.
- [11]Second, s 175F(2) then requires the chief executive to give the president a “restricted prisoner report” about the prisoner within 28 days after being given the notice. That report must include information that the chief executive considers is relevant to any of the matters mentioned in s 175H(2). I will return to s 175H shortly.
- [12]Third, as soon as is practicable after receiving the restricted prisoner report, and before making any decision in respect of it, the president is obliged to notify the prisoner –
- of the reception of the report (s 175G(3)(a));
- of the nature of the decision the president is required to make (s 175G(3)(b));
- of the effect of that decision (s 175G(3)(c)); and
- that the prisoner may make a written submission about the decision, and may ask the president to consider any material the prisoner considers relevant to the submission (s 175G(3)(d)).
- [13]Fourth, the president must then decide –
- if a restricted prisoner declaration is already in force, whether to make a new one (s 175G(2)(a)); or
- if there is no restricted prisoner declaration in force, whether to make one (s 175G(2)(b)).
- [14]Section 175H addresses the considerations to which the president must have regard when deciding whether to make a restricted prisoner declaration:
“175HDeciding to make restricted prisoner declaration
- The president may make a restricted prisoner declaration about a restricted prisoner if the president is satisfied it is in the public interest to do so.
- In considering the public interest the president must have regard to the following matters––
- the nature, seriousness and circumstances of the offence, or each offence, for which the prisoner was sentenced to life imprisonment;
- any risk the prisoner may pose to the public if the prisoner is granted parole;
- the likely effect that the prisoner’s release on parole may have on an eligible person or a victim.
- Also, in deciding whether to make a restricted prisoner declaration the president must have regard to the following information––
- the restricted prisoner report about the prisoner;
- if an eligible person has, under section 188, at any time made a submission in relation to a parole application made by the prisoner––the submission;
- any relevant remarks made by a court in a proceeding against the prisoner for the offence for which the prisoner was sentenced to a term of life imprisonment;
- if the prisoner made a submission under s 175G(3)(d)––the submission.
- Without limiting subsections (2) and (3), the president may have regard to any other matter or information the president considers relevant to the public interest.
- If the president considers it reasonable in the circumstances, the president may—
- defer deciding whether to make the restricted prisoner declaration; and
- ask any person for further information or documents the president reasonably requires to decide whether to make the declaration.
…”
- [15]Fifth, s 175I specifies what the president must do if the president decides to make the declaration. The declaration must state the reasons for making it; the day it takes effect and the day it ends; that the restricted prisoner may not apply for parole while it is in force and (if the application for parole was deferred under s 193AA(2)) that the application is refused. The period within which the declaration is in effect must not be more than 10 years: s 175I(3). Notably, and consistently with s 175H, in deciding the term of the declaration the president must be satisfied that the term is in the public interest and must have regard to the matters mentioned in s 175H(2).
- [16]Sixth, if the president decides not to make the declaration, then the president must give notice to the prisoner, the chief executive and the parole board: s 175J(2). If the application for parole was deferred under s 193AA(2), the application goes back to the parole board for decision and the president must notify the prisoner of that fact: s 175J(3). Under s 193AA(5), the parole board must refuse to grant the application for parole of a restricted prisoner “unless the board is satisfied the prisoner does not pose an unacceptable risk to the public”.
- [17]Finally, it must be noted that every parole order made under the Act involves conditional release of the prisoner. Some conditions are mandatory and applicable to every parole order and others will only apply consequent upon specific choices being made to impose them.
- [18]As to mandatory conditions, pursuant to s 200(1), a parole order must contain conditions requiring the prisoner the subject of the order:
- to be under the chief executive’s supervision for a specified period; and
- to carry out the chief executive’s lawful instructions; and
- to give a test sample if required to do so by the chief executive under section 41; and
- to report, and receive visits, as directed by the chief executive; and
- to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and
- not to commit an offence.
- [19]As to conditions which might be imposed beyond the mandatory conditions:
- pursuant to s 200(2), a parole order may contain a condition requiring the prisoner to comply with –
- directions from a corrective services officer to remain at a stated place for stated periods, or to wear a stated device, or to permit the installation of any device or equipment at a stated place, including, for example, the place where the prisoner resides; and
- directions from a corrective services officer which are reasonably necessary for the proper administration of such directions; and
- pursuant to s 200(3) a parole order may also contain conditions the board reasonably considers necessary—
- to ensure the prisoner’s good conduct; or
- to stop the prisoner committing an offence,
- pursuant to s 200(2), a parole order may contain a condition requiring the prisoner to comply with –
including, by way of example, a condition about the prisoner’s place of residence, employment or participation in a particular program, a condition imposing a curfew for the prisoner, or a condition requiring the prisoner to give a test sample.
The relevant aspects of the Chief Justice’s reasons
- [20]The particular factual matrix considered by the Chief Justice on the appellant’s application is not presently relevant except in one respect. The appellant’s submission before the Chief Justice was that the president’s decision to make a restricted prisoner declaration involved an error of law. The appellant contended that the president misconstrued s 175H(2)(b) of the Act, by interpreting it as not requiring consideration of whether parole conditions or any other matters would mitigate the applicant’s risk. This error was said to be demonstrated by a passage in the president’s reasons for making the restricted prisoner declaration in which he stated that “[i]t is not for me to consider here whether any parole conditions or any other factors may mitigate his risk”.
- [21]Before the Chief Justice, the appellant accepted that s 175H(2)(b) did not require consideration of whether the risk the prisoner may pose is “unacceptable”, because that question arises “at a different stage”, namely, if the restricted prisoner declaration was not made, and the application for parole was being considered, that question must be addressed by the parole board in deciding whether to grant parole (see s 193AA(5) and [16] above).
- [22]Notably, however, that had not been the submission which the prisoner had made to the president under s 175G. In that submission, the prisoner had contended that the relevant test was whether the prisoner’s risk was unacceptable. The respondent submitted to the Chief Justice that the words “[i]t is not for me to consider here whether any parole conditions or any other factors may mitigate his risk” which had been used in the president’s reasons were properly to be understood as part of the president’s explanation for rejecting the submission which was no longer pressed.
- [23]The appellant submitted to the Chief Justice that the words “risk the prisoner may pose to the public if the prisoner is granted parole” in s 175H(2)(b) referred to the risk that the prisoner may pose if released on a parole order subject to any conditions which might be imposed by the parole board under s 200 of the Act. The appellant submitted that the words called for the president to consider the effect of a notional set of parole conditions and thereby to make a qualitative assessment of the risk the particular prisoner posed, having regard to the effect of the notional parole conditions on that risk.
- [24]Before the Chief Justice, the respondent opposed that construction of the Act. The respondent submitted that the “touchstone” of the discretionary power conferred by s 175H was the public interest, and each of the considerations in s 175H(2) must be viewed in that context, which is necessarily broader than the context of making a decision on the parole application itself. The respondent submitted that the words “if the prisoner is granted parole” in s 175H(2)(b) meant no more than “if in the community”, so that what the president was required to consider, under the overarching consideration of what was in the public interest, was any risk the prisoner may pose to the public if released from custody into the community.
- [25]The Chief Justice accepted the respondent’s argument, reasoning as follows:
- The words in s 175H(2)(b) “any risk the prisoner may pose to the public if the prisoner is granted parole” should not be regarded as importing a requirement that the president must analyse the effect of a possible set of parole conditions. Rather:
“The words should be understood as meaning that what the president must consider is “any risk the prisoner may pose to the public” if granted conditional release into the community.”
- The words “is granted parole” in s 175H(2)(b) should be read as a reference to a grant of conditional release, in the broad sense. While the word “parole” necessarily imports the concept of “conditional” and not “unconditional” release, the phrase used does not necessarily import a requirement to consider a particular set of possible parole conditions.
- Section 175H(2)(b) is one of the mandatory considerations for the making of a decision, in the exercise of a discretionary power to be exercised in the public interest, as a precursor to any consideration of a parole application, the effect of which is to place an additional barrier in the way of an application for parole. The expressed purpose of the relevant provisions is to limit the re-traumatisation of victims’ families and friends, as well as to protect the community from harm. In that context, a broader approach to the consideration of “any risk” posed by the prisoner, if granted parole, is appropriate.
- The respondent’s explanation of the use of the words “[i]t is not for me to consider here whether any parole conditions or any other factors may mitigate his risk” should be accepted. The president was addressing and rejecting the submission that he was to consider whether the prisoner posed an “unacceptable risk” to the public. But that was the task to be undertaken at a later stage and by the parole board. The president was not to be taken to be saying that it was not relevant, as part of considering the broad question of risk, to consider the evidence as to the assessment of that risk, and in fact, his reasons went on to demonstrate that he did just that.[1]
- The consideration of risk required by s 175H(2)(b) did not require a binary choice between “risk” or “no risk”. It permitted a consideration of risk informed by the material provided to him, including various psychiatric reports. The rejection of the appellant’s proposition that s 175H(2)(b) necessitated consideration of the effect of a particular set of possible parole conditions was not the same thing and did not involve rejection of the relevance of the material which the president had considered.
- Finally, the Chief Justice observed:
“The question of risk to the public if the prisoner is granted parole is one of three considerations the president must take into account in deciding whether to make a restricted prisoner declaration. The weight to be given to each of those factors in the circumstances of any particular case is a matter for the president, in the exercise of the discretionary power conferred on him, as part of a balancing exercise. As submitted by the respondent, it is possible that, in a particular case, the risk to the public may be low, yet the nature, seriousness and circumstances of the offence(s) and the likely effect that the prisoner’s release on parole may have on the victims’ family may be such that warrants the making of the declaration, in the public interest. This is apparent from the purpose of the provision. The discretion conferred on the president by the “restricted prisoner declarations” provisions is one to be exercised in the public interest, as a separate step antecedent to consideration of any parole application, for the express purpose of limiting re-traumatisation of victims’ families and community protection. To restrict the meaning of s 175H(2)(b), in the manner contended for by the applicant, strains the language which has been used and is not consistent with the purpose of the provision in its context.”
- [26]Based on that analysis the Chief Justice rejected the submission that the president had erred as alleged and, accordingly, dismissed the application for judicial review.
Consideration of the appeal ground
- [27]The sole ground of appeal was “that the Court erred in construing s. 175H(2)(b) of [the Act] as not requiring the Respondent to consider whether parole conditions or any other matters would mitigate the Appellant’s risk.”
- [28]In my view, the Chief Justice made no such error of law.
- [29]One must put aside the issues raised by the fact that in the president’s reasons for making the restricted prisoner declaration he stated that “[i]t is not for me to consider here whether any parole conditions or any other factors may mitigate his risk”. That statement was a red herring explicable in the way the Chief Justice accepted. It is not to be regarded as a statement by the president that such issues were irrelevant to the decision which the president was making.
- [30]The Chief Justice was concerned to identify the generality of the consideration made mandatory by s 175H(2)(b) and to reject what her Honour regarded as an unwarranted constraint sought to be imposed on that particular consideration. I would adopt as correct her Honour’s explanation of s 175H(2) in the passages quoted at [25](a) and [25](f) above, and for the reasons given by her Honour.
- [31]Importantly – as should be clear from that part of her Honour’s reasons which I have summarised at [25](d) and [25](e) above – the Chief Justice is not to be taken to be suggesting that evidence that risk might be ameliorated by the parole board’s imposition of non-mandatory conditions is necessarily irrelevant to the overall assessment of public interest referred to in 175H(1). It is not uncommon – and it occurred in this case – that psychiatric reports expressing an analysis of the risk posed by prisoners upon parole release do so by expressing opinions having regard to and sometimes assuming the likely imposition of non-mandatory conditions. The president had regard to that information in this case and was entitled to do so. Section 175H(3)(d) requires the president to have regard to the prisoner’s submission and there is no reason why a prisoner might not address such matters there. And s 175HG(4) permits the president to have regard to any other matter of information the president considers to be relevant.
- [32]The significance of the Chief Justice’s decision is that any consideration of such matters must be carried out through the lens explained in the passage quoted at [25](f) above.
Conclusion
- [33]The appeal should be dismissed. Each party must bear its own costs.
- [34]BODDICE JA: I agree with Bond JA.
- [35]CALLAGHAN J: I agree with Bond JA.
Footnotes
[1]The president’s reasons had explained that specific consideration was given to various psychiatric reports. Amongst other things, those reports specifically considered the extent to which the prisoner’s risk of re-offending might be ameliorated by non-mandatory conditions concerning residential placement and monitoring; GPS monitoring, abstinence from disinhibiting intoxicants and the like.