Cherry v Queensland

The plaintiff, who had been convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 20 years, challenged the constitutional validity of sections 175L and 175E of the *Corrective Services Act 2006* (Qld). The dispute arose because the body of one of the murder victims had never been located, making the plaintiff a "no body-no parole prisoner." Section 175L allows the Parole Board of Queensland to make a "no cooperation declaration" if the victim's remains are not found and the prisoner has not provided "satisfactory cooperation," which prevents the prisoner from applying for parole even after their non-parole period has expired. The plaintiff also argued that section 175E, which permits the President of the Parole Board to make a "restricted prisoner declaration" preventing parole applications except in exceptional circumstances, could be invoked if the "no cooperation declaration" were found invalid. The case was heard by the Full Court of the Supreme Court of Queensland.

The central legal issue before the court was whether sections 175L and 175E of the *Corrective Services Act 2006* (Qld) were invalid on the grounds that they enabled the Queensland executive to impermissibly interfere with the exercise of judicial power by State courts, contrary to the principle established in *Kable v Director of Public Prosecutions (NSW)*. Specifically, the plaintiff contended that these provisions undermined the sentencing court's exercise of judicial power by allowing executive action to effectively alter the conditions of a sentence and the eligibility for parole determined by the court.

The court determined that section 175L of the *Corrective Services Act 2006* (Qld) was not invalid. The reasoning focused on the nature of parole as an executive function, distinct from the judicial function of imposing a sentence. The court held that the *Kable* principle, which guards against executive interference with the core functions of courts, was not engaged by section 175L. The provision did not purport to alter a court's judgment or sentence, but rather regulated the executive's power to grant parole, a matter falling outside the exclusive domain of judicial power. Consequently, section 175E did not require an answer as its potential application was contingent on the invalidity of section 175L.

The Full Court answered question (a) in the negative, finding section 175L of the *Corrective Services Act 2006* (Qld) to be valid. As a result, no answer was required for question (b) concerning section 175E. The court also determined that no answer was required for question (c) regarding section 193A of the Act. Finally, the court ordered that the plaintiff pay the costs of the proceeding.