The High Court has answered the questions in a special case on parole orders for prisoners who murdered a police officer, and its applicability to the plaintiff. The plaintiff was convicted of the murder of a police officer in a bombing in Russell St, Melbourne, and sentenced to a non-parole period of 28 years. After that non-parole period expired in September 2016, the plaintiff applied for parole, and that application proceeded through the parole review through October 2016. On 14 December 2016, s 74AAA was inserted into the Corrections Act 1986 (Vic), and provided new conditions for making parole orders for prisoners who murdered a police officer. It provides:

(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.

Sub-section 3 provides that the Board ‘must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.’ Sub-section 6 defines ‘police officer’ to include an officer who was performing the duties or exercising the powers of a police officer at the time of the murder, or a murder that ‘arose from’ or ‘was connected’ with the officer’s role as a police officer, regardless of whether the officer was performing the duties or exercising the powers of a police officer at the time of the murder.

The plaintiff had commenced proceedings before the High Court in January 2017, seeking declarations that s 74AAA did not apply to him or his parole application (see [12]). In December 2017, s 127A was inserted into the Corrections Act, which purports to make s 74AAA applicable to any parole application, regardless of whether it was before or after the commencement of s 74AAA (see further [11]).

The special case between the plaintiff and Victoria, following some changes during the hearings, was finally stated as follows:

(a) Is s 74AAA of the [Corrections] Act capable of applying to the Plaintiff in circumstances where:

(i) before the commencement of that section:

(A) the Plaintiff’s non-parole period had ended or parole eligibility date had occurred;

(B) the Plaintiff had made an application for parole; or

(C) the Board had made a decision to proceed with parole planning in respect of the Plaintiff; or

(ii) before the commencement of s 127A of the [Corrections] Act, the Plaintiff had commenced this proceeding?

(b) Is s 74AAA of the [Corrections] Act capable of applying to the Plaintiff in circumstances where it was not an element of the offence of which the Plaintiff was convicted that the Plaintiff knew, or was reckless as to whether, the deceased was a police officer as defined by s 74AAA(6)?

 

(ba) If the answer to question (b) is ‘yes’, is s 74AAA capable of applying to the Plaintiff in circumstances where the sentencing court, in determining the Plaintiff’s sentence, did not make a finding for the purposes of s 3(2)(a) of the Crimes Act 1958 (Vic)?

(bb) If the answer to question (b) and question (ba) is ‘yes’, is s 74AAA capable of applying to the Plaintiff only if he was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a police officer as defined by s 74AAA(6)?

 

(bc) If the answer to question (bb) is ‘yes’, does s 74AAA apply to the Plaintiff?

(c) If the answer to (a) and (b) is ‘yes’, is s 74AAA and/or s 127A of the [Corrections] Act invalid in their application to the Plaintiff in that they do not operate consistently with the Commonwealth Constitution and the constitutional assumptions of the rule of law?

(d) Who should pay the costs of the special case?

The High Court held that s 74AAA did not apply to the plaintiff.

The joint judges (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) held that s 74AAA was capable of applying to the plaintiff for the circumstances described in questions (a), (b), (ba) and (bb) (each answered ‘yes’), but that the final question, (bc), on whether s 74AAA in fact applies to the plaintiff, must be answered ‘no’: the plaintiff was not sentenced on the basis that he knew the person murdered was a police officer, or that he was reckless as to that fact, and thus s 74AAA does not apply to him (see [66]).

The joint judges dealt with each in question in order.

On question (a), whether s 74AAA applied to a plaintiff who had applied for parole prior to the commencement of the section or of s 127A, the joint judges began by noting the plaintiff’s argument that the Board was bound to assess his application and complete its task with reference to the law in force prior to the 2016 Amendment (at [17]–[18]). Noting that similar arguments had been made and rejected in other cases (see at [19]–[21]), the joint judges emphasised that this contention failed to take account of s 127A, which expressly operates to make s 74AAA apply to a prisoner in the plaintiffs position (see at [22]–[24]).

Turning to question (b), on whether s 74AAA applies given it was not an element of the plaintiff’s offence that he knew or was reckless as to whether the deceased was a police officer, the joint judges held that it could. Rejecting the plaintiff’s argument that this was not an element of his offence, and thus he was not convicted ‘for’ the murder of a police officer, the joint judges held that the text of s 74AAA shows that it is aimed at past convictions and sentences, and that reading it in the manner for which the plaintiff contends would deny s 74AAA any realistic operation because there is no specific offence of murdering a police officer (at [30]).

The joint judges then dealt with questions (ba) and (bb) taking them together. The joint judges read s 74AAA as ‘taken to operate distributively’, in that, it requires as a matter of fact that the person has been convicted of the murder of a person who was a police officer, ‘and as a further fact that the person knew or was reckless as to whether the person was a police officer’ (at [32]).

Question (ba) specifically asked whether s 74AAA applied where the sentencing court did not make a finding under s 3(2)(a) of the Crimes Act 1958 (Cth) (which provides for a standard sentence if the prosecution proves the person knew or was reckless as to the fact that the victim was an emergency worker). In this instance, the s 3(2)(a) could not have applied to the plaintiff because he was sentenced prior to its enactment (at [34]). Nonetheless, the answer to (ba) is still ‘yes’: s 74AAA is broader than s 3(2)(a) in that it applies to off-duty police officers, and it is also narrower in that it only applies to police officers (and not other emergency services or custodial officers): at [35]. Nothing in s 74AAA’s text or purpose supports the plaintiff’s argument for a narrower operation confining it to just s 3(2)(a)’s terms: ‘ Its natural reading is that whenever the circumstances provided for in s 74AAA(1) are present, s 74AAA applies.’ (at [36]).

Likewise, question (bb), whether s 74AAA applies to the plaintiff only if he was sentenced on the basis that he knew or was reckless as to whether the deceased was a police officer, should be answered ‘yes’. For the joint judges, the critical issue here was how the prisoner’s recklessness or knowledge should be established (at [40]). While the plaintiff contended that the Board must only apply the factual findings of the sentencing judge, and the State argued that the question is entirely left to the Board’s discretion (at [41]–[42]), the joint judges held that the Board must have regard to the court record and sentencing remarks (as provided for in s 74AAA(3)), and the natural reading is that the mental element in s 74AAA(1) should be gleaned from what was said by the sentencing court (at [46]). Further, the joint judges rejected the plaintiff’s arguments from s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides that statutory provisions be interpreted in a way that is compatible with human rights: the ordinary process of construction favoured a narrower approach, and were the Charter applied in the way the plaintiff contended for, it ‘would lead to no different conclusion’ (at [50]–[56]).

Moving finally to question (bc), on whether s 74AAA does in fact apply to the plaintiff, the joint judges held that it did not. Section 74AAA refers to knowledge or recklessness of the person convicted of murder that the victim was a police officer (at [60]). Here, that would have required that the sentencing judge found, beyond reasonable doubt, that the plaintiff subjectively appreciated or had actual foresight of that fact and was determined to proceed nonetheless (at [61]). In this case, the remarks of the sentencing judge do not contain any reference to the plaintiff’s state of mind around the identity of the victim, and no particular person or class of person was targeted by the common criminal enterprise in the way that s 74AAA(1) and (6) seems to require (at [63]). While the plaintiff and his co-accused were motivated by a hatred of society and its institutions, including its police stations and courts, there was no specific mention of targeting police in the sentencing remarks on the plaintiff’s state of mind (at [65]).

Consequently, there was no need to answer question (c) on whether s 74AAA and s 127A were invalid as contrary to constitutional assumptions about the rule of law (at [67]).

Gageler J agreed with the answers proposed by the plurality. Gageler J began by discussing the Charter, statements of compatibility and noting that ‘[b]ecause it condemns’ the prisoners to which it applies to ‘a life without’ hope, s 74AAA is incompatible with the human rights set out in ss 10(b) and 22(1) of the Charter (see [70]–[79]). For Gageler J, however, the questions concerning s 74AAA’s construction could, ‘[n]ot without hesitation’ be resolved to exclude the plaintiff from the class of prisoners identified in s 74AAA(1), without any reference to s 32(1): at [80].

After rejecting several possible constructions of the kind of prisoner that s 74AAA applied to (see [82], [83], [84]), Gageler J held that the only interpretations open on the text of s 74AAA were between the ‘third’ interpretation and the ‘second variation of the fourth interpretation’; respectively, that ‘the prisoner needed to be convicted of the offence of murder and needed to be sentenced on the basis that the prisoner knew that, or was reckless as to whether, the victim was a police officer’ or that ‘he prisoner needed to be a person who as an objective fact was convicted and sentenced for murder and who as an objective fact knew that, or was reckless as to whether, the victim was a police officer’. (at [83], [85]).

For Gageler J, the former was to be preferred. It focused the factual inquiry to the prisoner’s state of mind, limited to the facts found by the sentencing judge in sentencing the prisoner, which need to be facts found proven beyond reasonable doubt at trial (at [87]). It thus avoided any supplementation of the criminal justice system by a finding of fact by in a civil proceeding for pre-emptory declaratory relief, or as part of a judicial review of the Board’s decision, which would be necessary on the second variation of the fourth interpretation (see [86], [88]). For these reasons, Gageler J agreed with the joint judge’s answers to questions (b), (ba) and (bb): at [90].

While for Gageler the answer to question (bb) strictly rendered an answer on question (a) unnecessary, given the joint judges had answered it, Gageler J opted to express his agreement with that answer (at [91]). Gageler J’s agreement, however, was based on a ‘straightforward’ reading of s 127A: s 127A’s declaration that s 74AAA applies to prisoners eligible for parole prior to the 2016 amendments in unqualified terms shows that it had the ‘contrary intention’ required to operate before its commencement (see further [93]).

Finally, Gageler J agreed with the joint judges on their answer to question (bc) on the basis that the plaintiff is outside the class of prisoners to which s 74AAA(1) refers, as well as with the answers on questions (c) and (d).

Gordon J also agreed with the answers given by the joint judges, and their reasons, and offered several further reasons (see at [101]). Gordon J agreed that s 74AAA only applies if the prisoner knew or was reckless as to the victim being a police officer: that need not be an element of the offence for which the prisoner was convicted, and the Board must have regard to the records of the court, its judgment and the sentencing reasons in satisfying itself of the existence of those facts: ‘The task of the Board is confined. If the court did not find those facts, the section does not apply to a prisoner’ (at [102]).

Gordon J added two further points on the plaintiff’s argument, which should both be rejected. Section 74AAA does not infringe or take away a right or entitlement of the plaintiff because, prior to its enactment, the Act did not give any right or entitlement to parole: that power remains with the executive, and the Act provides for a system by which the Board may exercise that power by making a parole order (at [104]–[108]). Secondly, Gordon J rejected the plaintiff’s characterisation of s 74AAA, either alone or with s 127A, as operating retrospectively (at [109]). Again, there is no right or entitlement that s 74AAA could have withdrawn, and instead s 74AAA operates prospectively to alter the system for assessing parole applications: the plaintiff has no right or entitlement to any particular system for parole applications (at [109]–[111]).

High Court Judgment	[2018] HCA 27	20 June 2018
Result	Section 74AAA does not apply to the plaintiff
High Court Documents	Minogue
Full Court Hearing	[2018] HCATrans 84	15 May 2018
Directions Hearings	[2017] HCATrans 198	6 October 2017
	[2017] HCATrans 120	6 June 2017
	[2017] HCATrans 83	11 April 2017

ORDER

The questions stated by the parties in the special case filed 21 December 2017 be amended and the questions stated (as so amended) be answered as follows:

Question (a)

Is s 74AAA of the Corrections Act 1986 (Vic) (“the Corrections Act“) capable of applying to the Plaintiff in circumstances where:

(i) before the commencement of that section:

(A) the Plaintiff’s non-parole period had ended or parole eligibility date had occurred; or

(B) the Plaintiff had made an application for parole; or

(C) the Board had made a decision to proceed with parole planning in respect of the Plaintiff; or

(ii) before the commencement of s 127A of the Corrections Act, the Plaintiff had commenced this proceeding?

Answer

Yes.

Question (b)

Is s 74AAA of the Corrections Act capable of applying to the Plaintiff in circumstances where it was not an element of the offence of which the Plaintiff was convicted that the Plaintiff knew, or was reckless as to whether, the deceased was a police officer as defined by s 74AAA(6)?

Answer

Yes.

Question (ba)

If the answer to question (b) is “yes”, is s 74AAA capable of applying to the Plaintiff in circumstances where the sentencing court, in determining the Plaintiff’s sentence, did not make a finding for the purposes of s 3(2)(a) of the Crimes Act 1958 (Vic)?

Answer

Yes.

Question (bb)

If the answer to question (b) and question (ba) is “yes”, is s 74AAA capable of applying to the Plaintiff only if he was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a police officer as defined by s 74AAA(6)?

Answer

Yes.

Question (bc)

If the answer to question (bb) is “yes”, does s 74AAA apply to the Plaintiff?

Answer

No.

Question (c)

If the answer to question (a) and question (b) is “yes”, is s 74AAA and/or s 127A of the Corrections Act invalid in their application to the Plaintiff in that they do not operate consistently with the Commonwealth Constitution and the constitutional assumptions of the rule of law?

Answer

Unnecessary to answer.

Question (d)

Who should pay the costs of the special case?

Answer

The defendant.