HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJCRAIG WILLIAM JOHN MINOGUE PLAINTIFF
AND
STATE OF VICTORIA DEFENDANT
Minogue v Victoria
[2018] HCA 27
20 June 2018
M2/2017
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.
Representation
C J Horan QC with A F Solomon-Bridge for the plaintiff (instructed by Darebin Community Legal Centre)
K L Walker QC, Solicitor-General for the State of Victoria with G A Hill for the defendant (instructed by Victorian Government Solicitor)
Interveners
M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))
P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes for the Attorney-General of the State of Queensland, intervening (instructed by Crown…
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- AGLC
- Minogue v Victoria [2018] HCA 27
- Case
- [2018] HCA 27
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether sections 74AAA and 127A of the *Corrections Act* applied to Mr Minogue, notwithstanding that prior to the commencement of these sections, he had become eligible for parole, had applied for parole, and the Adult Parole Board of Victoria had commenced consideration of his parole. The Court was also asked to consider whether section 74AAA applied even if the sentencing court had not made a finding that the prisoner knew, or was reckless as to whether, the deceased was a police officer. Finally, the Court was asked to determine if the sections were invalid in their application to Mr Minogue on constitutional grounds.
The Court's reasoning focused on statutory construction, particularly the retrospective operation of legislation. Section 127A was inserted to clarify that section 74AAA applied regardless of prior parole eligibility, applications, or the Board's consideration. The Court determined that section 74AAA could apply to Mr Minogue even if his parole eligibility date had passed or he had applied for parole before the commencement of the section. Furthermore, the Court found that section 74AAA could apply even if the sentencing court had not made a specific finding regarding the prisoner's knowledge or recklessness as to the victim's police status. However, the Court ultimately concluded that section 74AAA did not apply to Mr Minogue because the specific conditions for its application, as interpreted by the Court, were not met in his case, despite the broad wording of section 127A.
The Court answered the questions stated in the special case. It held that section 74AAA was capable of applying to Mr Minogue in the circumstances outlined in question (a) and question (b). However, in response to question (bc), the Court determined that section 74AAA did not apply to Mr Minogue. The defendant was ordered to pay the costs of the special case.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ, GAGELER J, GORDON J
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