Jones v The Queen - [1994] HCATrans 323

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 1994
B e t w e e n -
WAYNE PETER JONES

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Jones.W

12/5/94

AT SYDNEY ON THURSDAY, 12 MAY 1994, AT 2.15 PM

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,
MR S.J. ODGERS. (instructed by T. Murphy, Managing
Director, Legal Aid Commission of New South Wales))

MR K. MASON, OC, Solicitor-General for New South Wales:

appear with my learned friend, MR P.J.P. POWER, for
the respondent. (instructed by S.E. O'Connor,
Solicitor for Public Prosecutions (New South
Wales))

MASON CJ:

Mr Game.

MR GAME: If the Court pleases. Section 25A of the

Sentencing Act, upon which considerable reliance was placed by the Court of Criminal Appeal,
provides the Offenders Review Board with a power in
exceptional cases when a prisoner is dying, not to
suffer the indignity of dying in custody, but to be
released. It is a power which is not reviewable.
It is a power in which no application even

necessarily need be heard. No reasons are required
to be given.
It is concerned with an entirely different

issue than that which a court is concerned with
when it sentences on a basis of material which
establishes, as the material established in this
case, that the applicant's life expectancy was
substantially reduced by HIV, that his conditions
of custody would be harsher by reason of the
disease which he suffered, and that the disease was
likely to accelerate his condition.
On the other hand, when a minimum term is set

by a court, the Offenders Review Board, at the
expiry of that minimum term, is obliged to consider
the application, is obliged to consider all of the
features relevant to the case, including the
community interest and the safety of the community.

reviewable by appeal and by prerogative relief. It is obliged to give reasons and its decisions are When the court fixes a minimum term, it
determines, in effect, in a case such as this, what
proportion of the remainder of the prisoner's life
must be spent in custody prior to eligibility for
parole. That is an entirely different question
than that with which the Department of Corrective
Services, or the Offenders Review Board, is
concerned in in circumstances involving a dying
prisoner having the dignity to die not in custody.
In the Court of Criminal Appeal, particularly

at page 28, the court appears to have given great
weight to matters which fall within the power of

Jones.W

12/5/94

the executive. In fact, it is the substance of the
court's reasons, we would submit, really relying
upon matters relating to executive relief. At
page 27 a reference is made to a case of Starke, an
English case, and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v The Queen

Details

AGLC: Jones v The Queen [1994] HCATrans 323
Case: [1994] HCATrans 323
Decision Date

CaseChat Overview and Summary

The applicant, Mr Jones, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal. The dispute concerned the sentencing of Mr Jones, specifically the weight given by the Court of Criminal Appeal to executive powers relating to the release of terminally ill prisoners, as opposed to the court's role in fixing minimum terms of imprisonment.

The central legal issue before the High Court was whether the Court of Criminal Appeal had erred in its sentencing determination by placing undue reliance on the executive power under section 25A of the Sentencing Act, which allows for the release of prisoners in exceptional circumstances when they are dying. This power is discretionary, not subject to appeal, and does not require reasons to be given. The applicant argued that this executive power was distinct from the court's judicial function of setting a minimum term, which is reviewable and requires reasons to be given, and considers factors such as community safety and interest.

The applicant contended that the Court of Criminal Appeal had conflated these two distinct powers. The applicant's HIV diagnosis, which substantially reduced his life expectancy and would make his custody harsher, was present at the time of his original sentencing. The applicant argued that the Court of Criminal Appeal had improperly considered matters that fell within the purview of the executive, such as the indignity of a dying prisoner remaining in custody, rather than focusing on the appropriate minimum term based on the evidence available at sentencing and the subsequent progression of his illness. The applicant submitted that the court's reliance on English cases, such as *Starke*, was erroneous as those cases dealt with different factual circumstances and legal principles.

Orders