Mott v Queensland Community Corrections Board
[1994] QCA 391
•7/10/1994
| IN THE COURT OF APPEAL | [1994] QCA 391 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 8 of 1994
Brisbane
[Qld Community Corrections v. Mott]
BETWEEN:
QUEENSLAND COMMUNITY CORRECTIONS BOARD
Appellant
v.
MELVIN THOMAS MOTT
Respondent
Fitzgerald P.
Davies JA.
McPherson JA.
Judgment delivered 07/10/94
Separate reasons for judgment of the President, Davies JA and Pincus JA, all concurring as to the orders made.
APPEAL ALLOWED. ORDERS MADE BELOW SET ASIDE.
CATCHWORDS: | ADMINISTRATIVE LAW - CRIMINAL LAW - Parole - review of decision to refuse parole by Community Corrections Board - long term prisoner made several applications for parole over a number of years - seen to pose a continuing threat as shown no remorse - prisoner maintains innocence - whether the Board is to act upon applicant's guilt being established by conviction - whether the Board is required to review the correctness of the conviction |
| Counsel: | Mr. R. Hanson Q.C., with him Mr. G. Koppenol for the appellant |
| Respondent conducted his own case | |
| Solicitors: | Crown Solicitors for the appellant Respondent conducted his own case |
Hearing Dates: 13/07/94
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.8 of 1994
| Before | Fitzgerald P. Davies JA. McPherson JA. |
[Qld. Community Corrections v. Mott]
BETWEEN:
QUEENSLAND COMMUNITY CORRECTIONS BOARD
Appellant
v.
MELVIN THOMAS MOTT
Respondent
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 07/10/94
This is an appeal from a judgment delivered in the Trial Division on 14 December 1993. It was ordered that a decision of the appellant made on 18 December 1992 be set aside, and that an application made by the respondent to the appellant on 15 June 1992 "be referred back to the [appellant] for further consideration in accordance with law and in accordance with His Honour's judgment." The appellant seeks to have the judgment below set aside, and the respondent's application to the Supreme
Court pursuant to the Judicial Review Act 1991 dismissed with costs, including the costs of this appeal, to be taxed.
The respondent is a 51 year old man, born on 29 March 1943, who has been in prison since his conviction for murder on 27 April, 1968. The victim was a thirteen year old girl, who was raped before she was murdered on 17 October 1964. The prosecution case depended on evidence from two other prisoners, with whom the respondent had been incarcerated for another offence between the time of the murder and the time when he was charged. According to these witnesses against the respondent, he confessed to them that he had raped and murdered the child. The respondent denies that he made such confessional statements or that he is guilty. As will be seen, this denial of guilt has affected his opportunity for release on parole.
The respondent has sought parole on a number of occasions in the last decade. Despite his good behaviour and the support his applications have had from psychiatrists and prison officials, all his attempts have been unsuccessful. His most recent application was made on 15 June 1992, and refused by the appellant on 18 December that year. That is the decision ordered to be reconsidered by the judgment of the primary judge which is presently under appeal.
It is unnecessary to record in full detail the history of the respondent's time in prison or his unsuccessful applications for parole. In late 1984 - early 1985, his application was refused by the then Parole Board in the context of recommendations that he be placed on a prison farm for a period, then permitted to participate in a "release to work" program, "as an initial step towards parole, with appropriate monitoring of his behaviour", to quote from a report dated 12 October 1984 from Dr. Edwards, the psychiatrist in charge of the State Psychiatric Clinic. After a period in the Numinbah prison farm, the respondent was released to work on 19 November 1985, and he worked in the community and lived in an appropriate hostel until about 22 December 1987.
During that time, the respondent was again examined by Dr. Edwards as well as by a psychologist, Mr. W.P. Konopacki, whose report was available to Dr. Edwards. Although some matters of concern were noted, each recommended that the respondent be granted parole with ongoing monitoring. The Comptroller-General of Prisoners and other officials supported parole for the respondent, and the Parole Board recommended to Cabinet on 5 May 1987 that he be admitted to parole, but Cabinet rejected the recommendation.
Early in 1988, the appellant was again examined by Mr. Konopacki and another psychologist, Mr. M.P. Cremer. Both recommended parole subject to regular monitoring. The Parole Board considered the respondent's situation at a meeting at which Dr. Edwards was present and, following that meeting, the Chairman of the Parole Board wrote to the Minister for Corrective Services on 16 June 1988 recommending the respondent's release on parole. At the conclusion of that letter, it was said:
"'Finally I should add one matter which was raised in the Board's discussions. If Mott's application is to be refused then the question of his future needs to be addressed. Although he has apparently proved himself on release to work, he should not be granted further releases to work unless there is some reasonable expectation that he will be granted parole. The only apparent alternative is to retain him in custody indefinitely. Whether this is the appropriate course is a question which needs to be addressed in the light of the many reports and assessments made concerning him, all of which would favour his release on parole".
In response to this letter, the Minister indicated that Cabinet had considered the recommendation and decided:
"That Melvin Thomas Mott further participate in the Release to Work Programme for a period of six months."
The respondent was released to work in accordance with Cabinet's decision but, when the specified period expired, he was returned to prison.
By then, a further application for parole had been made, but no final decision had been made on that application prior to 19 December 1990, when a further report was obtained from Dr. Edwards. Up until then, there continued to be general support for the respondent's parole, but there were delays associated with changes to the system and no recommendation was made to Cabinet. By December 1990, the appellant, not Cabinet, was required to decide whether parole should be granted.
In his report dated 19 December 1990, Dr. Edwards
stated:
Conclusions
": sexually deviant, his preferred sex objects being peripubertal and pre-pubertal girls, i.e., he is also a pedophile. His actions in shooting Doreen Lambert were callous. It would seem that he killed her in order to prevent her from informing on him. He does not accept responsibility for his past anti-social behaviour. He continues to deny that he has any sexual deviation problems. He is not motivated towards seeking treatment for his sexual deviation which might result in bringing his sexually deviant impulses under control. There is no such thing as a cure for this condition and the direction of his drive cannot be altered, but the level of his sex drive possibly could be substantially reduced and brought under control. But he is unmotivated to change.
In view of his psychopathic personality, paedophilia, his past violent behaviour and wide range of anti- social behaviour, his current attitudes, I am now not prepared to recommend that he is a suitable person to be granted parole, because of the risk that he could again commit a sexual offence involving a young girl and if that occurred the life of that girl could be placed in danger."
Both the respondent and the primary judge criticised Dr. Edwards, particularly because it was said that he failed adequately to explain his change in attitude and that the explanation which he gave to the appellant on 16 August 1991 when it met to consider whether to release the respondent on parole was unsustainable. In the end, however, the primary judge, correctly in my view, placed little weight on any basis which existed for criticism of Dr. Edward's shift in opinion. He was undoubtedly free to change his opinion, and indeed required to state his honest current opinion, even if it differed from views which he had earlier expressed, and it was open to the appellant to rely on Dr. Edwards' later opinion if it chose to do so.
In fact, the appellant also obtained a number of other psychiatric reports, from Drs. Lawrence, Walsh and Grant, and all were present at the appellant's meeting on 16 August 1991 and gave additional information to the appellant and answered questions by its members. The respondent was also present at that meeting.
Before considering the opinion of the other doctors, it
is desirable to notice another matter referred to in Dr.
Edwards' report dated 19 December 1990, namely the
respondent's denial of his guilt. In the body of his report,
Dr. Edwards said:
"He again denied killing Doreen Lambert, ... . He
denied that he had ever met her ... .
...
... . He has always attempted to minimise the extent of his social and sexual deviance and to use denial to excess. In my contact with him, he has never expressed remorse or guilt feelings in relation to any of his offences and of course he has continued to vehemently deny that he murdered Doreen Lambert. He has always been solely concerned with himself and being released into the community as soon as possible."
It seems from Dr. Edward's statement of his conclusions, set out above, that the respondent's denial of guilt was a factor which led him now to recommend against parole, although he had previously supported parole notwithstanding that attitude on the part of the respondent.
Each of the other psychiatrists also referred to the respondent's denial of his guilt but, nonetheless, overall supported his release on parole subject to conditions. It is sufficient for present purposes to quote extracts from their respective reports.
After saying that the respondent's "personality development indicates sociopathic traits", Dr. Grant said:
"Mr Mott appears to exhibit very little remorse or guilt in association with his sexual behaviour. Probably the most worrying facet of this case is that, assuming he committed the murder, he has failed completely to come to terms with his behaviour or the effect on the victim and her family. The callousness of the murder and the lack of any remorse about it gives rise for concern in regard to the potential for future aggressive behaviour.
Despite all this, there is some reasonably substantial evidence of maturation and improvement in behavioural controls since Mr Mott's imprisonment.
Given Mr Mott's offending history and his personality makeup one has to be very cautious in predicting future behaviour. It can never be guaranteed that he will not reoffend again in a substantial way. However, given the quite prolonged trials of work release programmes and significant freedoms and liberties in recent years it would appear that the risk of either violent or illegal sexual behaviour by Mr Mott has been reduced substantially by the lapse of years and by increased maturity.
...
In summary, from the psychiatric viewpoint there would appear to be no major impediments to Mr Mott being released on parole. There are no relevant psychiatric illnesses. From the behavioural point of view one can never predict very definitely that future offending behaviour will not occur. The relative risks must be weighed up. In Mr Mott's case I think he has demonstrated to a considerable degree in recent years, that he can be trusted to assume a responsible position in society if he is given more freedoms. Nevertheless, I think it would be very important that he be followed- up closely in order to monitor his affective state and try to assist him with any problems in regard to sexuality or aggression."
Dr. Lawrence said:
"MOTT had a superficially confident air and manner of
speaking. He gave every evidence of good average
intelligence without cognitive defect. In his thought
content, speech and manner however, he demonstrated
paranoid and defensive attitudes, extensive
rationalisations and denial concerning his own
behaviour and hostility, including quite extensive
paranoid hostility towards police and justice
authorities.He spoke, for example, with utter conviction, of his innocence of the wilful murder charge, ... . On other aspects of his behaviour - when some of his stories, as presented by him in a self serving way, were questioned, his responses were somewhat evasive or his explanations glib. It was clear that he understood and was well aware of the sorts of responses that would be necessary to promote his case and that he was certainly capable of modifying some of his behaviour and/or the presentation of his behaviour to achieve certain purposes.
...
I note that following his return to prison after Cabinet rejected the Parole Board's recommendations, the Psychologist's report speaks of some decompensation
in his coping mechanisms, i.e., in the face of disappointment and frustration, he appears to have become more paranoid and hostile. Whilst such responses are understandable, the implications are that he still has the potential for regressing under significant stress and that his level of paranoid hostility increases under such stress and threat.
OPINION
It is my opinion that Melvin MOTT has a antisocial (sociopathic) personality disorder. There is continuing evidence of this today in this glibness, lack of guilt, self-justification, and a degree of callousness. He is apparently able however to learn to control some of his behaviour and to modify it to achieve certain ends. He continues however to display strongly, traits of paranoid responses and hostility to authority whilst functioning and performing better within restraints imposed by his closely supervised and monitored environment.
...
On balance, one has to say that MOTT continues to display evidence, in my opinion, of his basic sociopathic personality disorder with paranoid traits and hostility. His subjective statements currently would have to be treated with a certain amount of reserve as to their reliability because of his self interest. However, his objective behaviour over a number of years is consistent with his ability to remain in the community without reoffending.
I cannot say that he would not reoffend under any circumstances. However, the risk appears to be comparatively low. It would be highest if he were under stress or threat to his security and freedom for whatever reason, and presumably if the opportunity to gratify sexual drive with a young girl was presented at an opportune moment.
On balance it would seem reasonable to allow this man to be paroled but his behaviour and performance should be, in my opinion, closely and strictly monitored as long as possible, and that there should continue to be conditions requiring abstinence and close supervision, including objective evidence, as to his performance and behaviour."
Dr. Walsh merely recorded the respondent's denial of his guilt and said:
"MENTAL STATE ASSESSMENT
Mr. Mott is a middle-aged, mildly poppy-eyed man. He was mildly anxious during the interview and at times was surly. He did not show any evidence of psychotic illness (i.e. he was not out of touch with reality). Testing of intellectual functioning did not reveal any significant deficits. He appeared to have normal memory and concentration and was able to copy various diagrams.
OPINION
I consider that Mr. Mott does not suffer from any significant psychiatric illness. There is no evidence to suggest that he continues to be paedophilic in orientation though it is clear that in his early years (approximately twenty years ago) he did have a propensity to be involved inappropriately with young females. His more recent claimed contact with females was with adult females. Certainly he has been granted significant amounts of leave on release to work and currently with leaves of absence and on his account it would appear that there have been no abnormal sexual activities. I have not seen recent phallometric testing but the previous testing was not overly informative.
It is impossible to predict whether this man will commit further sexual offences but assuming that his behaviours have been appropriate while on release to work and leave of absences then it would seem reasonable to allow him parole provided that he were to attend a facility such as the City Psychiatry Clinic to undergo regular close supervision. Even with this, no guarantee can be given that he will not re-offend. If he is not released at this time, however, then it would seem unlikely that he would ever be released due to concerns about possible further offences."
At the meeting on 16 August 1991, the "Sexual Offenders' Treatment Programme" was raised with the respondent. Apart from his conviction for murder, he has a criminal record, including a number of convictions for sexual offences, which occurred between 1960 and 1965: assault and indecency against a girl under sixteen years, unlawful carnal knowledge of a girl under the age of seventeen years, and unlawful and indecent dealing with a girl under the age of twelve years. To quote the primary judge, the respondent "showed little interest" in the Sexual Offenders' Treatment Programme. Further, while he persisted in his denial of his guilt for the murder, he was not a suitable person to engage in the program.
On 20 August 1991, the appellant advised the respondent that it had resolved to refuse his application for parole, its reasons being:
"1. The Board is of the view that you pose an unacceptable risk to the community as it is concerned that you will commit another offence involving a young girl.
2. The Board has noted your non-acceptance of your conviction and your failure to demonstrate any desire to involve yourself in programmes specifically designed for sex offenders."
There has been substantial subsequent correspondence between the appellant and the respondent concerning his parole, including one or more further applications, the critical one of which was made on 15 June 1992. By letter dated 24th September, 1992, the appellant wrote to the respondent giving as its reason for its refusal of that application the risk of re-offending, noting his "persistent assertion" that he was not guilty of any relevant criminal offence. More detailed reasons were sought and obtained from the appellant. These reasons rehearse extensively events leading up to the 1991 meeting and refer to a number of matters. There is also reference to the respondent's "prior offending behaviour". The reasons state:-
" Another matter of concern to the Board was the fact that Mott has vehemently denied and continues to deny his guilt in respect of the offence of wilful murder and denies also that he has any deviant sexual aberrations which might influence his future behaviour."
Reference was made to a recommendation that the respondent undertake the Sexual Offenders' Treatment Programme, and his lack of interest in it. The appellant's reasons then note that:-
"Those who conduct the programme are of the view that the programme is inappropriate for those persons who persistently deny criminal involvement in the relevant sexual offence."
This is, of course, the position consistently adopted by the respondent. Finally, the reasons state that:-
"The Board at its most recent meeting again resolved to refuse the application on the ground that Mott presented an unacceptable risk to the community in that if released on parole he may commit another offence involving a young girl. Again it noted and expressed its concern that Mott continues to deny involvement in the offence of which he was convicted.
The Board must accept the fact of the conviction and cannot sensibly review it. At the same time, it has no reason to question the genuineness of Mott's view that he was innocent. Its major concern is that given the facts upon which he was convicted and his criminal history, it regards Mott as an unacceptable risk if released."
The primary judge appears to have been concerned at the possibility that the respondent's denial of guilt was justified and that he might not be guilty of the child's rape and murder. He said that the prosecution case "depended largely upon 'prison yard' confessions". Such evidence is today assessed with rather more care than was the case at the time of this trial". Further, he referred twice to the testimony of a woman called to give evidence by the prosecution who described some of the movements of the respondent on the date of the offence which "seems to reduce his opportunity for involvement in the offence."
His Honour also said:
"I turn to the question of the applicant's refusal to
admit his guilt. Clearly, this matter has weighed
heavily with the respondent, yet it seems to me that
taken by itself, it is irrelevant to the question of
the applicant's suitability for parole. However
unpalatable it may be, we must accept the possibility
of wrongful conviction. By acknowledging that
possibility, we simply acknowledge that the system is
created and staffed by human beings. To decline parole
upon the basis that the applicant refuses to
acknowledge his guilt denies the possibility of error.In some circumstances, denial of guilt, considered in the context of the evidence at the trial, may be relevant to the question of parole. If there was direct and unchallenged evidence of a prisoner's involvement in the crime, then his persistent denial of such involvement may well be indicative of a refusal to face up to this guilt with whatever consequences that might have. Such cases might include those in which unimpeached eye witnesses implicated he prisoner or cases in which there were unchallenged confessions from which the prisoner has subsequently resiled. No doubt, there would be other cases in which the evidence of guilt was so persuasive that any denial would be incredible.
This was never such a case upon my understanding of the it is obliged to accept the respondent's conviction, the primary judge continued:
evidence.""Whilst this is so for some purposes, it is not so when one is considering the significance or otherwise of a prisoner's refusal to admit guilt. The only evidence available to the respondent was not such as to suggest that the applicant's protestations of innocence must necessarily be perverse. To the contrary, the most incriminating evidence was of a kind now treated as calling for close scrutiny. ... .
...
In the circumstances, I consider that to rely upon his refusal to admit guilt as a ground for refusing parole without considering the nature of the evidence against him was either to take into account an irrelevant consideration (namely his refusal) or to fail to take in to account relevant considerations (namely the state of the evidence against him at trial). To the extent that no adverse inference should be drawn from his denial of guilt for present purposes. ... ."
On the basis of these views, the primary judge
concluded that "the ground identified in s.20(2)(e) [of the
Judicial Review Act] as defined in s.23 is established."
On this appeal, the appellant challenged the primary judge's approach to the respondent's denial of guilt and consequential unsuitability for the Sexual Offenders' Treatment Programme,and I should say immediately that I consider that that approach was affected by error. A denial of guilt or a refusal to participate in a program, for example a counselling program, may not always be material or may be of limited relevance. However, if the respondent is guilty as found by the jury, the significance of his denial of his guilt and his disinterest in, and unsuitability for, the Sexual Offenders' Treatment Programme is manifest, as is amply borne out by the psychiatrists' opinions. The more difficult question concerns whether, and if so to what extent and in what manner, the appellant should, or could, have taken into account, in deciding whether to grant or refuse parole, a possibility that the respondent was wrongly convicted so that his denial of guilt is correct and his non-participation in the Sexual Offenders' Treatment Programme justified.
The appellant is constituted by Part III of the Corrective Services Act 1988, and Part IV deals with "Parole". There are no express provisions dealing with what matters must or may be taken into account by the appellant in deciding whether to grant or refuse parole, or with matters which may not be taken into account. There is obviously a wide discretion, related both to considerations
affecting the interests of the prisoner for whom parole is
being considered and public interest considerations: cf. In
re Findlay (1985) AC 318, cited South Australia v. O'Shea
(1987) 163 CLR 378. It is unnecessary and undesirable to
attempt to circumscribe those considerations.
Nonetheless, there is one inherent limitation which should be recognized. The very concept of parole starts from the premise that a prisoner, rightly convicted of a crime, may nonetheless be released from prison back into the community, subject to conditions: section 175 of the Corrective Services Act specifies the requirements of a parole order. This premise underlies the entire statutory scheme, of which section 184 is a central feature. That provision is as follows:
"184. Prisoners on parole deemed still under sentence. Until the parole period has expired as referred to in
section 183(1) or a prisoner is otherwise discharged from the term of imprisonment, detention for a period or detention during Her Majesty's pleasure imposed upon him, a prisoner released on parole shall be regarded as still being under sentence or detention and as not having suffered the punishment to which he was sentenced or as not having undergone detention during the period for which he was ordered to be detained or, in the case of a habitual criminal, as being an habitual criminal and liable to be further detained during Her Majesty's pleasure."
A variety of other sections elaborate upon the basic notion; see, for example, sections 177 to 181, 183, and 185 to 191.
A proposition that the prisoner is or may be not guilty, but innocent, is fundamentally incompatible with the concept of parole, and completely at odds with the functions
and responsibilities for which a body such as the appellant
is constituted. Emphasis is given to the nature of the
appellant's role by the statutory provision governing its
membership (Corrective Services Act, section 132), which
serves to underscore the impracticability of a parole
hearing in which the appellant is required to embark upon a
re-assessment of the evidence against a prisoner, and the
correctness, or any doubt attendant upon, the jury's
verdict, and perhaps its confirmation on appeal. By that, I
do not mean to indicate that the appellant should not have
regard to the evidence given at the trial of an applicant
for parole. It may often be important for it to do so but
not, in my opinion, for the purpose of reviewing the
correctness of that applicant's conviction. Further, I do
not consider it necessary for the appellant to read the
entire trial record whenever it needs to be informed of the
nature of the crime committed by the parole applicant.
It follows, in my opinion, not only that the primary judge erred in his decision, but that the appellant was entitled, and required, to proceed on the footing that the respondent's guilt had been established by his conviction, and that his attitude, and suitability for parole, fell to be assessed on the basis of his denial of guilt, and his disinterest in and unsuitability for, the Sexual Offenders' Treatment Programme, were to be considered in the context of his established guilt. In these circumstances, no error was demonstrated in the appellant's approach, and it should not have been ordered to reconsider its decision refusing the respondent parole.
It does not follow that the respondent is not entitled to make a further application or that, if he does, the appellant is bound to refuse it. The outcome will depend on the material then available to the appellant, including what has occurred to this point. The psychiatric evidence obtained thus far does not seem to be a necessarily insuperable obstacle to the respondent even while he denies his guilt and is unsuitable for the Sexual Offenders' Treatment Programme, but it is for the appellant to decide whether these or other psychiatric opinions, or any other material, justify the respondent's release on parole.
The primary judge obviously felt some sympathy for the respondent. He said:
"One can understand the applicant's frustration in this matter. He long ago resigned himself to spending a considerable period of time in prison and has done so. He has performed in all respects as required by the prison system, and he has now been imprisoned almost twice as long as would be expected generally by persons convicted of offences of the kind committed by him.
For a period of almost three years he has been allowed to live in the community, apparently in the expectation that he would thus prove his suitability for parole.
His parole has been consistently recommended by the parole service and by those persons in whose custody he has been. All four psychiatrists who have examined him over the years have recommended his parole, although with qualifications. Of course, Dr. Edwards has now resiled from that position. The predecessor to the present respondent, the Parole Board recommended his parole on more than on occasion."
These are matters for the appellant to take into consideration in any future consideration of whether the respondent should be paroled. But, as is pointed out above, considerations personal to the respondent must be considered in conjunction with factors associated with the public interest.
As is also noted above, the primary judge was also concerned at the possibility that the respondent's denial of guilt was justified and that he might not be guilty of the child's murder for which he has been in prison for more than 26 years. While it is not for the appellant to act on that possibility, his Honour's concerns and the apparently limited evidence against the respondent may justify a review of the trial evidence by the Attorney-General, in order to be satisfied that there has not been a miscarriage of justice.
In this proceeding, however, the appropriate orders are that the appeal be allowed and the orders made below be set aside. There is no purpose to be served in making an order for costs against the respondent.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8 of 1994
Brisbane
[Mott v. Qld Community Corrections Board]
| Before | Fitzgerald P. Davies J.A. McPherson J.A. |
| BETWEEN: |
MELVIN THOMAS MOTT
(Applicant) Respondent
AND:
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(Respondent) Appellant
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 07/10/94
I have had the advantage of reading the reasons for judgment of each of the President and McPherson J.A. which set out the relevant facts and statutory provisions. I shall therefore not restate them here.
The learned primary judge ordered that a decision of the appellant made on 18 September 1992, by which it refused the respondent parole, be set aside on the grounds that the appellant, in arriving at its decision:
1. took into account an irrelevant consideration namely the respondent's refusal to acknowledge his guilt of the offence of murder of which he had been convicted; and
2. failed to take into account a relevant consideration, namely the state of the evidence against the respondent at the trial of that offence.
As McPherson J.A. has pointed out, the substantial reason given by the appellant for refusing parole was that the respondent posed an unacceptable risk of re-offending involving the commission of a sexual offence on a young girl. And the substantial reason for that conclusion was the opinion expressed by Dr Edwards, a psychiatrist, that because of the respondent's psychopathic personality, pedophilia, past violent behaviour, wide range of anti- social behaviour and his current attitudes, he would not be prepared to recommend that the respondent was a suitable person to be granted parole because of the risk that he could again commit a sexual offence involving a young girl and that if that offence occurred, the life of that girl could be placed in danger. It is true that this opinion was open to criticism on the basis that it appeared to differ from an earlier expression of opinion by him and that the reason for his change of opinion was not easy to discern.
However, as the learned primary judge recognised, the appellant was entitled to act on that opinion.
Nevertheless, I think it is correct to say that a consideration which the appellant took into account was the respondent's persistent denial of guilt. Read in the context of the reasons which it gave, that was because the appellant thought that the denial rendered him unsuitable for participation in a sexual offender's program. In that context the appellant also mentioned, in its written reasons, that the respondent had declined to act on the appellant's recommendation that he participate in that program. In other words the appellant took into account the respondent's refusal to acknowledge his guilt only as explaining why he could not undergo that program.
Neither the respondent's denial of guilt nor his consequent unsuitability for participation in a sexual offender's program was a reason for refusing parole. But, read in context, I do not think that the appellant's reasons assert that either was. On the other hand his successful completion of that program, denied to him by his denial, would have been a factor in his favour. It was only in this negative sense that the appellant took the respondent's denial of guilt into account. In taking it into account in this limited way I do not think that the appellant can be said to have taken into account an irrelevant consideration in arriving at its decision.
Nor do I think that the appellant's failure to take into account the state of the evidence against the respondent at the trial for the murder offence justified review of its decision. It may well be that in some cases it is desirable, or even necessary, in determining eligibility for parole of an applicant, to look at the evidence given at the applicant's trial. But I do not think that this was such a case. The reason why the learned primary judge concluded to the contrary is, apparently, that the evidence might have shown that there was some basis for the respondent's persistent denials of guilt. That assumes, wrongly in my view, that the appellant thought that the respondent's persistent denials of guilt showed a refusal to face up to the reality that he had committed the offence and that that was a reason for refusing parole. But its written reasons are inconsistent with this. They say: "At the same time it has no reason to question the genuineness of Mott's view that he was innocent." The true basis upon which the appellant thought that the respondent's denial of guilt was relevant was that it denied the respondent the opportunity of participating in a program, successful completion of which may well have enhanced his case for parole.
For these reasons neither of the grounds of review was, in my opinion, made out. I agree therefore that the appeal should be allowed and that the orders made below should be set aside.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8 of 1994
Brisbane
| Before | Fitzgerald P. Davies J.A. McPherson J.A. |
[Mott v. Qld. Community Corrections Board]
BETWEEN
MELVIN THOMAS MOTT
(Applicant) Respondent
- and -
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(Respondent) Appellant
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the Seventh day of October 1994
On 17 October 1964, D, a 13 year old girl, went missing in the course of a visit to a friend at Bald Hills. In September 1966 her skeletal remains were discovered by a forestry worker in an area of bushland at Kallangur bounded by Old Gympie Road, Boundary Road, and Kerr Road. She had been shot through the back of her head by a single bullet from a .22 calibre firearm.
On 26 April 1968, at a trial before Hoare J. and a jury in the Supreme Court at Brisbane, the applicant (who is the respondent to the appeal before us) was found guilty of the wilful murder of D. He was convicted and sentenced to imprisonment for life. An appeal (C.A. no. 21 of 1968) to the Court of Criminal Appeal (Mack A.C.J., Hangar, W.B. Campbell JJ.) against his conviction was dismissed on 19 June 1968.
Prior criminal history. At the time of his conviction for murder the applicant was already serving a sentence for unlawful and indecent dealing with Jacqueline, a girl under the age of 12 years, committed on 13 August 1965. He had pleaded guilty to a charge of that offence, and the sentence imposed on him by Grant-Taylor D.C.J. on 8 October 1965 was that the applicant be admitted to a good behaviour bond after serving a term of 18 months imprisonment cumulative on an existing sentence he was then serving for another offence.
The offence against Jacqueline was committed in the morning of 13 August 1965, which was the day on which the applicant escaped from Wacol Prison where he was serving a sentence of 12 months imprisonment imposed by Moynahan D.C.J. on 5 March 1965. That sentence followed a trial in the District Court at Brisbane at which the jury found the applicant guilty of a single count of having unlawful carnal knowledge on 16 January 1965 of a girl Irene, who was 14 years old. An appeal against conviction (C.A. no. 8 of 1965) was dismissed on 23 April 1965 by a Court of Criminal Appeal comprising Sheehy, Lucas and Douglas JJ. At the same time an application for leave to appeal against sentence was refused.
At the time of sentencing for the offence committed in January 1965 the applicant, who was born on 29 March 1943, had accumulated a record of relatively minor offences of dishonesty spanning a period commencing in about 1962. Of importance for present purposes is the fact that on 15 March 1960 he had been charged with assaulting a girl under the age of 16 years and committing an act of indecency. The offence took place at Ulladulla in New South Wales, and the applicant, who was then almost 17 years old, was dealt with by the court at Milton and released on probation to the care of Charlton Boys Home, Glebe, until he attained the age of 18 years.
The applicant turned 21 in March 1964. He has been continuously in prison since March 1965, apart from the brief interval of his escape in August 1965, and subsequent periods of supervised release to work. In practical terms the whole of his adult life, except for some time between the ages of 18 and 22, has been spent in prison or under prison supervision. At 51 years of age, he is now the longest serving prisoner in Queensland.
History of parole applications. If the escape in 1965 is disregarded, the applicant has in most respects behaved as a model prisoner who has committed few breaches of prison rules or discipline. In 1983 he was allowed to work outside Wacol Prison, where he was then detained. In 1985 he was transferred to Numinbah State Prison Farm, and later released to work on the recommendation of the Government Psychiatrist, Dr Edwards. He remained at work under that scheme from November 1987 to December 1987. In 1987 he was recommended for parole by the Parole Board, but State Cabinet, with whom the final decision then rested, rejected his application, and he was returned to prison. In 1988 the Parole Board once again recommended his release, but with the same result; State Cabinet instead recommended him for release to work in July 1988. He has now spent some 31 months in all working under that scheme, in the course of which he has had leave of absence to stay with friends at weekends for at least some of that time. He has worked satisfactorily for various employers principally in the motor wrecking industry, enabling him to save some money, which he says has now been expended on legal and other fees in attempts to obtain parole.
In 1989 the applicant received a further recommendation for parole, which was again rejected by Cabinet. The process was repeated in 1990, when the Parole Board divided 4-2 on the question of parole. Judging by press clippings in the Board's file forming part of the record before us, on that occasion the media received wind of the applicant's possible future release, and a number of unfavourable reports appeared in the press. In the result, parole was refused by Cabinet, and his release to work licence has since been cancelled.
By the time of the applicant's next application for parole in 1991, the Corrective Services Act 1988 was in force. Under s.131 of that Act the existing Parole Board was continued in existence but renamed the Queensland Community Corrections Board. As constituted under subsequent legislative amendments, it comprises a President (in place of a chairman) and seven other members. Section 165 effectively transferred to the Board the power of releasing a prisoner on parole, so that it became the Board, and not Cabinet, which had the final say. In the case of a prisoner serving a term of imprisonment for life, the power of release is qualified in s.166(1)(a) by providing that such a prisoner is not eligible for parole until after he has been detained for 13 years. For the purpose of discharging its functions and duties under the Act, s.159 constitutes the Board a commission of inquiry, with all the statutory powers and authorities associated with that status.
Thus at the time when the applicant's next application for parole came before the Board in 1991, it not only had the power, previously exercised by Cabinet of directing the release of the applicant on parole, but under s.159 a power to sit as a commission of inquiry to hear evidence from witnesses, and so on. On 16 August 1991 the Board held a meeting at which three consultant psychiatrists were invited to give their opinions after having interviewed the applicant and reviewing his record. They were Dr Lawrence and Dr Grant, and Dr Walsh, who had been nominated by the applicant or his legal advisers. At the meeting, they and Dr Edwards, who had previously given written reports, answered questions put to them by the President and other members of the Board. The proceedings on that occasion were recorded, and a copy of the transcription forms part of the material before us on this appeal.
By letter dated 20 August 1991 the Board by its secretary advised the applicant that his application for leave of absence was refused. As the reason for that refusal the letter said:
"(a) The Board is of the view that you pose an unacceptable risk to the community as it is concerned that you may commit another offence involving a young girl.
(b) The Board has noted your non-acceptance of your conviction and your failure to demonstrate any desire to involve yourself in programmes specifically designed for sex offences."
By a further letter dated 18 February 1992 from the secretary, the Board declined to approve the applicant's release on parole "for the reasons advised in my letter of 20 August 1991". The letter also notified the applicant that the Board declined to act on his request for a hearing under s.159 of the Act.
On 15 June 1992, the applicant again applied for parole. A letter dated 24 September 1992 from the Board informed him that the Board had on 18 September again considered his request and refused it. It went on to recall that in August 1991 the Board's view was that:
"... there remained a concern that if released you may re-offend. In reaching its conclusion the Board took note of your persistent assertion that you were not guilty of any relevant criminal offence."
The letter advised that, despite further consideration of the matter at its last meeting, the Board saw no reason to change its view.
The application for judicial review. After receiving notice of that decision, the applicant began proceedings by application bearing date 27 May 1993 under the Judicial Review Act 1991 for a statutory order to review the decision of the Board. Although the application does not precisely identify the decision in question, it is evidently directed to the decision made on 18 September 1992, which was notified to the applicant by the Board's letter dated 24 September 1992. Written reasons (bearing date 19/9/92) for that decision, furnished in accordance with s.33 of the Act, give an outline of the applicant's history as a prisoner undergoing sentence. Reduced to essentials, the reason given for refusing parole is the same as that previously communicated to the applicant; namely, that the applicant posed an unacceptable risk of re-offending "involving the commission of a sexual offence on a young girl". In that regard, the Board specifically noted that the view of Dr Edwards was "positively against" releasing the applicant on parole, whereas the other psychiatrists' evidence to the Board was "more equivocal". The Board also "noted and expressed its concern" that the applicant "continues to deny involvement in the offence of which he was convicted". Elsewhere in those written reasons, it is recorded that the applicant had declined to act on the Board's recommendation that he participate in the sexual offenders programme; and that those conducting the programme considered participation "inappropriate" in the case of persons "who persistently deny criminal involvement in the relevant sexual offence".
The application for a statutory order to review came before Dowsett J., who gave detailed written reasons for his conclusion that the decision of the Board made on 18 December (sic) 1992 should be set aside, and that the application for the statutory order should be referred back to the Board for further consideration. In reaching that conclusion his Honour held that the making of the Board's decision to refuse parole was, within the meaning of s.20(2)(e) of the Judicial Review Act, "an improper exercise of the power conferred by the enactment under which it purported to be made" (which in this case would be s.165 of the Corrective Services Act), read in the light of s.23 of the Judicial Review Act, which explains that "improper exercise of power" includes taking an irrelevant consideration into account in the exercise of a power; or failing to take a relevant consideration into account.
The learned judge considered that the statutory power to release the applicant on parole had been improperly exercised because the Board had taken into account the applicant's refusal to admit his guilt of the murder of D, and also because the Board had failed to take into account the state of the evidence against him at his trial for that murder. His Honour regarded the first of these matters as in law irrelevant, and the second as in law relevant, to the exercise of the statutory power to release on parole. It was because he found that the Board had acted on a different view of both matters that he set aside the decision of the Board refusing release on parole.
The Board has now appealed to this Court against the decision given by Dowsett J.
The questions for decision here are, first, whether his Honour was correct in law about the relevance or irrelevance of the two matters mentioned; and, if so, whether the Board in fact acted contrary to either of those conclusions.
Refusal to admit guilt. With respect to the matter of guilt, it would, I think, be impossible to say that the refusal of an applicant for parole to admit his guilt is necessarily or always to be considered as irrelevant. An applicant's perverse insistence on his innocence of a charge to which he had pleaded guilty, or was found guilty at a trial at which an overwhelming case was proved against him, may, as his Honour accepted, in some circumstances plainly be relevant to a decision whether or not to release him. It might legitimately be viewed as manifesting an attitude on his part that was inconsistent with the aims or objects of parole in his case. On the other hand, it would in my opinion be improper for the Board to adopt a rule that release on parole should not be ordered unless and until the applicant acknowledged his guilt of the offence or offences of which he was convicted. It is not a proper function of the power of granting release on parole that it be used to compel admissions of guilt as a condition precedent to release.
Within the limits marked out by these two extremes there is an area in which an applicant's refusal to acknowledge guilt might have more or less significance to a decision whether to release on parole. I do not think the difficulty can be altogether resolved by saying that the Board is bound to accept and act upon the fact of the conviction alone. The question is not whether an applicant for parole has (as must always be the case) been convicted, but whether his refusal to acknowledge guilt may be regarded as a relevant consideration in assessing his application for parole. It is not difficult to see that in some circumstances it may be a factor relevant to the process of rehabilitation. An offender who has come to terms with his guilt, and is genuinely remorseful about it, would ordinarily be a more suitable candidate for parole than one who refuses to do so.
In the present case, it cannot be suggested that the Board adopted or acted upon a rule that the applicant must be refused parole simply because he failed to admit his guilt of the offence of murder of which he was convicted. It is not even completely clear that his failure to acknowledge guilt was a relevant factor in the Board's decision to refuse parole. It is true that, as the Board observed in its formal reasons dated 19.9.1992, those who conduct the sexual offenders release programme consider the programme "inappropriate" for a person who persistently denies criminal involvement in the relevant sexual offence.
It does not follow that the Board treated the failure of the applicant to participate in that programme as fatal to his prospects of rehabilitation and parole. In its letter of 20 August 1991 by which its original decision was conveyed, the Board simply "noted" the applicant's "non- acceptance of your conviction" and his failure to demonstrate any desire to involve himself in that programme.
The same word "note" is used in the Board's letter dated 24 September 1992, and again in the formal reasons antedated to 19.9.92 given under s.33. My impression is that the Board was saying no more than that it was a circumstance that did not assist the application for parole. The distinction may appear superficial, particularly as the first letter of 20 August 1991 identifies non-participation in the programme as one of two reasons specified; but at least by the time of the relevant decision in September 1992, the Board was not refusing to exercise its power to release the applicant on parole because of his failure to participate in the programme or because of his refusal to acknowledge his guilt.
The evidence at trial. On this footing the learned judge below was, in my respectful opinion, mistaken in holding that the Board had used the applicant's refusal to admit guilt as a reason for denying his application for parole. Despite this conclusion I do not think it possible to dispose of the present appeal or the decision from which it comes on the simple ground that the Board was bound and entitled to act solely on the fact of the murder conviction considered in isolation from the circumstances involved or the evidence adduced at the trial. This raises for consideration the second of the two reasons why the learned judge below held that the Board's decision should be set aside; that is to say, that it failed to take into account the state of the evidence against him.
It is said in the Board's reasons, and with obvious justification, that it "cannot sensibly review" the applicant's conviction. By that, I take it that what is meant is the verdict of guilty against him. The Board has at its disposal neither the means nor the jurisdiction to form an independent judgment on the guilt or innocence of an applicant for parole. To attempt to do so would, in the vast majority of cases, be impracticable and futile without seeing all the witnesses giving their evidence on oath and being cross-examined. Even if they were still available, their memories of events would in a case like this now be quite unreliable.
It is, however, another matter to say that the evidence that was given at the trial may not or should never be examined by the Board, or by someone on its behalf. The present case is in many respects exceptional and peculiar. The applicant has been sentenced to life for murder. He has now been continuously detained for longer than any other prisoner under sentence, and for a period nearly twice as long as that specified in s.166(1)(a). He has what appears to be a persuasive claim based on his good conduct throughout that period to be released. The Board has in fact recommended parole on at least four occasions since 1986. However, in 1991 and again in 1992 it suddenly adopted a different attitude to parole after the power to order release had specifically been vested in it. Not unnaturally, the applicant is desperate to know the explanation for the change.
Psychiatric opinion. It is, I think, as the Board reasons state or imply, correct to say that Drs Lawrence, Grant and Walsh were "equivocal" in the opinions they gave to the Board, but that Dr Edwards was positively against releasing the applicant on parole. In the case of Dr Edwards, the rational difficulty is that prior to 1990 he was in favour of that course. In his report dated 9 October 1986 he said it was "difficult not to recommend he be granted parole but with regular monitoring of his condition". It is proper to add that at the meeting of the Board that followed on 13 November 1986, Dr Edwards is said to have maintained the "somewhat guarded view" that no one could confidently predict the applicant's future behaviour, while at the same time remarking that it was an accepted psychiatric opinion that persons of this type in their forties were less likely to re-offend.
By 19 December 1990, which is the date of his next report forming part of the material on this appeal, Dr Edwards had completely reversed his opinion. In that report his conclusions were that the applicant had a "psychopathic personality disorder", and was "also sexually deviant, his preferred sex objects being peri-pubertal and pre-pubertal girls, i.e. he is also a pedophile". Dr Edwards considered there was "no such thing as a cure for this condition", and that he was "not now prepared to recommend that he is a suitable person to be granted parole because of the risk that he could again commit a sexual offence involving a young girl".
Much attention has been given both by the Board and in these proceedings to identifying the reason for this change of opinion on the part of Dr Edwards. When asked about it at the meeting of the Board on 16 August 1991, Dr Edwards was inclined to offer two explanations for it. One was the result obtained by phallometric testing of the applicant. However, it was also accepted by Dr Edwards that the particular result obtained by this method has been unreliable because of malfunctioning of the apparatus used.
The other was that the applicant had admitted to Dr Edwards that between the ages of 16 and 25 he had entertained deviant sexual fantasies involving young girls at or below the age of puberty. According to Dr Edward's report of 16 August 1991, the applicant had, before his most recent interview on 17 December 1990, "always insisted that he had no sexual interest in young girls".
Both the Board and the learned judge below thought it very difficult to accept this explanation for the change of opinion on the part of Dr Edwards. As early as his report dated 9 October 1986, Dr Edwards had said that he had always felt that there was "a strong hebophilic component" in the applicant's sexual preferences, meaning by that, as he himself then said, that the applicant was "in all probability ... positively attracted to and had a preference for young adolescent girls, i.e. hebophilia". Dr Edwards also reported in 1986 that he had always viewed the applicant as a psychopathic personality and a loner. In view of what he said at that time, it is simply not possible on the evidence available to know what it was that has happened to make Dr Edwards change his mind about the applicant's suitability for release on parole, although it may be noted that the applicant himself believes it has to do with two other cases in which recommendations for parole proved tragically mistaken.
Unacceptable risk of re-offending. The substantial reason given by the Board for refusing the application for release on parole was that the applicant "presented an unacceptable risk to the community in that if released on parole he may commit another offence involving a young girl". The learned judge below proceeded on the footing that, if there was no material on which the Board could have reached such a conclusion, the decision to refuse parole was open to review. He considered, however, that the Board was not altogether precluded from relying on the opinion of Dr Edwards that the applicant should not be released, even though his Honour had doubts about what Dr Edwards had said.
In a case like this there are, it seems to me, two principal difficulties confronting the Board, neither of which has been fully acknowledged in all that has been said about the applicant and his application for parole. The first is that, in vesting in the Board a power to order the release on parole of a person sentenced to imprisonment for life, the Corrective Services Act prescribes no principle and provides no guidance as to the policy on which the Board is to act. Previously the decision rested with Cabinet, which in reaching a decision presumably took general "political" considerations into account. Now the decision rests with the Board, which is expressly or by implication bound to act strictly in accordance with law. In the absence of legislative prescription or guidance, the Board has, at least in the present case, formed the view that it ought not to order the applicant's release if there is a continuing risk that he may commit another offence involving a young girl.
In a case like this it would be impossible to disagree with such an approach to the way in which the statutory power is to be approached and exercised. Releasing an offender on parole must nearly always involve some degree of risk that the applicant may re-offend. Whether the risk is one that should be taken must inevitably depend on assessment not only of the extent of the risk that the applicant may re-offend but of the consequences of his doing so. If the consequence for others threatens to be serious, even a slight risk of re-offending may justify the Board in refusing parole.
Information available to the Board. This brings me to the second of the two difficulties mentioned. It concerns the means of assessing the risk in a case like this. The Board, as well as its consultants and advisers, do not have much to go on in deciding whether or not to grant release on parole. There seem in the end to be only four principal sources of information or advice available to them. One is the nature and circumstances of the offence or offences leading to the sentence for which parole is sought. The second is the applicant's criminal record (if any) both before and after that conviction. A third is his general pattern of behaviour while under sentence. The fourth is the opinions of the psychiatrists based on reports by others and on their own interviews with the applicant, as well as their particular expertise derived from their own experience and from studies of the research done by others of human behaviour in comparable cases.
So far as the present case is concerned, the third of these matters seems generally to favour the applicant. He has borne himself well during many of his years in prison and particularly during periods of work to release and leave of absence. It is the other factors, and principally the last, that create problems. If Dr Edwards is correct in his opinion that "there is no cure for this condition", it would be wrong for the Board to release the applicant. The other psychiatrists who attended the meeting on 16 August 1991 seemed to adopt a somewhat more optimistic opinion, but without committing themselves to any more definite conclusions about the applicant's release, its timing, or the conditions that should apply to it.
No doubt this is in the nature of psychiatry viewed as a branch of medicine involving the diagnosis and treatment of aberrant human behaviour. However, the premise on which all opinions and advice to the Board have been based is that the applicant is or may be a person who has or in the past had displayed deviant sexual tendencies which are directed at young girls. The assumption holds good even if, as Dr Grant has opined, the applicant's problem is an aggressive impulse, tied in with his personality structure, that may not be primarily sexual, but which is "mediated" through sexual aggression. What I find troublesome is identifying the precise material on which these conclusions are based. One would not think it would be wise to rely unquestioningly on what the applicant related in interviews. The material must consist in large part of the applicant's criminal record, which is contained in the Board's file under the title "Particulars of Sentence". The particulars discoverable there comprise, however, no more than a bare statement of the offence, the sentence, the court, and the identity of the sentencing officer. To obtain any more useful details about the nature and circumstances of the offences, it is necessary to go to one of the many reports in the Board's file. By far the most complete is that prepared by Mr Cremer in April 1988, which has already been mentioned.
Relevance of the murder conviction. The report dated 13 April 1988 sets out a lengthy personal history of the applicant containing clear indications that Mr Cremer had access to and closely examined court records of the proceedings in relation to the two offences committed in Queensland in 1965 and that he also had some details of the 1960 offence in New South Wales. What is striking by its omission, however, is any reference to the court record of proceedings in the case of the 1968 conviction for murder.
For various reasons the murder offence is obviously the most relevant of all the offences committed by the applicant. It has been treated as such by everyone concerned. It is the reason why he is still in custody and is the offence for which he refuses to accept responsibility. It is therefore important for the information it may be capable of providing about the applicant, his sexual preferences, and the dangers, if any, that may follow if he is released. Nevertheless, in the Board's file the only identifiable source of information about it is a series of extracts from contemporary newspaper reports of the trial. Before us the applicant complained bitterly that the newspaper reports are incomplete as well as being somewhat sensational in form. Bearing in mind that they were designed not for use by the Board but for the edification of the public at large, the criticism is not easy to refute.
It is difficult to identify any other possible source of information about the circumstances of the 1968 murder. The applicant claims not to know anything about it because of his claim that he had nothing whatever to do with it. While, therefore, he is prepared to be interviewed about the circumstances of his other convictions for sexual offences, he either will not or cannot provide any useful information on the critical offence which he was found guilty of committing in 1964. The report prepared by Mr Cremer in 1988 refers to the applicant's conviction for murder in 1968. It gives an account of the applicant's impression of the trial and the explanation he gives for his conviction. Needless to say, the explanation is self-exculpatory. In contrast to the other convictions referred to, there is nothing in the report to suggest that the record of proceedings at the trial was ever examined. In giving his reasons for the decision from which this appeal has now been brought, his Honour noted that the Board in its detailed reasons for refusing parole had referred to "the facts upon which he [the applicant] was convicted". Like his Honour, I am not persuaded that by this was meant the evidence in the record of proceedings at which the appellant was found guilty. So far as appears from the material in the file, the only detailed information available to the Board and those who advise it has come from newspaper reports of the trial.
Because, so far as can be gathered, no one has done so before, I have read the record of proceedings at the trial of the applicant for the 1964 murder, which forms part of the records of this Court.
The circumstances of the murder. It is not difficult to see why the police were led to suspect the applicant. At the time he was living in the area where the murdered girl's remains were found. What is more important, they were found at a place in the bush only a few hundred yards from where the applicant later had carnal knowledge of the girl Irene in January 1965. Apart from that, there was, objectively speaking, little if any, "hard" evidence to link the applicant to the crime. The Crown case, as the Acting Chief Justice recognised in dismissing the appeal from conviction, stood or fell on confessions and incriminatory statements alleged to have been made by the appellant to fellow prisoners while he was in gaol or custody undergoing sentence for the 1965 offences.
Prison yard confessions are viewed by juries with somewhat greater circumspection nowadays than they were in 1968. In this instance the principal witnesses to the confession in January 1967 were a man named Bennett and, to a lesser extent, a man named Humphries. A confrontation was arranged at which Bennett repeated the confession in front of the applicant, who denied having made it. There was, however, a map of the area in which the body was found. The applicant admitted it was drawn by him, but claimed that not all of the markings on it were put there by him. Bennett then or later agreed that he might have placed some of the details on it but at the applicant's direction. The map confirmed that some conversation about the area had taken place. Bennett said the map was drawn by the applicant to show where he had hidden the rifle (which Bennett told him he needed) which the appellant had used to kill the girl. The applicant's account was that he drew it to direct Bennett to a place where he could hide when he escaped, which Bennett was (or said he was) planning to do.
Before us the applicant denied he had a rifle at about the time in question. The weapon used to perpetrate the murder was never found; however, two apparently independent witnesses gave evidence at the trial that they had seen a rifle in the appellant's car at about the time of the girl's disappearance. Two other witnesses testified to having heard the applicant say he had shot a girl in the bush at Kallangur. That was in the cell in August 1965 after he had escaped from prison for two days and been recaptured. The prosecution claimed he had escaped with a view to hiding the rifle elsewhere because it was capable of being traced back to him. According to the confession the applicant had originally left the rifle with the girl's body when he concealed it in the bush.
The applicant contended that the confession to Bennett was a fabrication inspired by the police and adopted by Bennett in order to ingratiate himself with the authorities or with a view to claiming the reward offered for the girl's killer. That was the approach to the confessional evidence adopted by the defence at the trial. Such an explanation appears to presuppose a conspiracy between the police and at least six witnesses, two of whom were, as I have said, apparently independent. The applicant complained that his counsel had let him down. On his advice he did not give evidence at the trial. The reason for such advice would not be difficult to identify. The applicant would, if he had given evidence, have been liable to be cross-examined about his prior convictions for offences against young girls, which would have been fatal to any prospect of acquittal he might have had.
The applicant's sexual proclivities. What emerges from the evidence given at the trial in 1968 for the murder in 1964 is that there are some obvious similarities between that offence and the offence later committed by the applicant against the girl Irene in 1965, the Court record of which I have also read. In both the victim was a girl of about the age of puberty; in one case she was 13, in the other 14 years of age. According to the evidence in both cases, each of the girls was alone and trying to find her way home when the appellant picked her up in his car before taking her to the same place in the bush at Kallangur and having sexual intercourse with her. In the case of Irene in 1965, she said she consented to sexual intercourse because she was afraid. In the 1964 case the confessional evidence related by Bennett has it that the girl acquiesced in sexual intercourse with the applicant, but he shot her because she threatened to tell her father of what he had done. It may be noted that, according to the report of Mr Cremer in April 1988, the applicant when interviewed said that he "often gave lifts to girls waiting at bus stops or walking along roads", and that his first serious relationship resulted from such an encounter.
These two offences bear comparison with the offence committed upon the girl Jacqueline by the applicant on 13 August 1965 on the morning of his escape from prison, and to which he pleaded guilty. The court record does not contain the information recited by the prosecution at the sentencing hearing, but it was evidently available to Mr Cremer. His report mentions that court records give a different account of the incident from that given by the applicant in his interview with Cremer. According to Mr Cremer, the uncontested evidence showed that the applicant "tried to entice the girl away on the pretence of meeting his non- existent thirteen year old sister. The girl was forcibly led away" by the applicant, who inserted a finger into her vagina, and hit her across the face when she screamed.
Confirmation of this version of events can be found in a handwritten letter from the applicant, entitled "Statement to the Judge" which forms part of the record of the sentencing hearing before Judge Grant Taylor on 8 October 1965. According to that statement, he met two girls on the river bank at Jindalee on the morning of his escape from Wacol prison. All he wanted from them, he wrote, was information to enable him to escape -
"But as the girls said it was time they had better go home, a fit or urge or what ever it was that makes me do these dreadful things. You see, Your Honour, this is not the first time these urges have come over me."
The statement goes on to recount the incident at Ulladulla in 1960 involving an 11 year old girl, and mentions tablets that were given to him to stop him getting "these urges".
It then proceeds to an account of the offence committed against Irene on 16 January 1965, and repeats the applicant's evidence at the trial that he attempted, but never had, sexual intercourse with her. It relates some of his subsequent personal history, and then returns to the matter of the "urge" which led him to commit the offence against Jacqueline in 1965, and which "was too strong for me to control". The statement concludes by requesting the judge to ensure that the applicant is put in a place where he will receive the right treatment to cure him of "what ever it is that is wrong with me".
In his sentencing remarks Judge Grant Taylor expressly drew the attention of the prison authorities to the accused's written statement submitted to him and to "the obvious desirability of medical and psychiatric examination with a view to remedial measures". The applicant's written statement does not, however, appear to have been known or adverted to in any of the reports to or proceedings before the Board, and the applicant himself has apparently not had the opportunity of commenting on it in recent times. Taken at face value, it contains admissions by the applicant that in 1965 he was suffering from a condition over which he had no control that led him to commit offences against young girls.
Material before the Board. The existence of this material in the various court records leads me to conclude that the information available to the Board and its legal advisers at the time it made its decision on the application for parole was not as complete as it might have been. On one view of the evidence in the court records, there was ample material to justify a conclusion that at the time these offences were committed in 1964 or 1965 the appellant had an uncontrollable sexual predilection for young girls. If a conclusion to that effect were to be formed on all the available material, it might be expected to influence the Board's assessment of the parole application. Whether it would make it more or less likely that release on parole would be granted would, however, remain a matter for the Board and its expert advisers. The outcome might be expected to depend on whether or not the applicant had overcome the condition from which he apparently admitted he was suffering in 1965.
The principal factor in the assessment continues in my opinion to be whether there is a perceptible risk that the applicant would, if released, re-offend in the same way as he has in the past. In assessing that risk, the Board has on this and other occasions correctly taken account of the applicant's good record of behaviour under detention and during his period of release to work and leave of absence, as well as his claim that he has sexually matured since his earlier years and has succeeded in forming relationships with women of his own age. The very real difficulty that confronts both him and the Board is that in a practical sense there is nothing affirmative that he can do or say to demonstrate that he will never offend again. Judging by what we have seen of the applicant in the court and what we have read about him, he is an articulate individual, who feels the injustice of his position very strongly. Over the years since 1986 he has been led to believe that his release on probation is within reach only to find his hopes repeatedly frustrated. He is not unnaturally becoming suspicious of and hostile towards those who have the duty of deciding his fate.
Conclusion. To return specifically to the matter under appeal, I consider that in making its decision on the application for release on parole the Board ought to have considered the material in the court record of proceedings in the applicant's trial in 1968 resulting in his conviction for murder. In the particular circumstances of this case, the material in that record was relevant in assessing the nature and circumstances of the offence of which he was found guilty, and so of providing a comparison with the other offences against young girls of which the applicant had been convicted. I do not consider that contemporary press reports of the 1968 trial were a proper or sufficient basis for forming an opinion about these matters when other more reliable material was readily available. To that extent, I am persuaded that the Board took into account an irrelevant consideration or failed to take into account a consideration that was relevant, which was the evidence in the official court record of the murder of which the applicant was found guilty in 1968.
The final question is the result of the appeal itself. On the basis of the conclusions I have stated, the decision of the judge below was wrong in treating the fact of the
conviction as an irrelevant consideration in deciding the application for release on parole. On the other hand, the Board was in a case like this also wrong in acting on information about the 1964 murder based on press reports of the trial instead of using the official court record. In either event, it becomes necessary for this Court to reconsider the matter afresh. It would be open to this Court to dismiss the appeal, leaving in place the order made by the judge that the Board's decision on 18 September 1992 be set aside, and that the application be referred back to the Board for further consideration; if that were done, it would presumably follow that the Board would be bound to reconsider its decision made in 1992.
Such a course is not desirable. The decision under review was made some two years ago. Since then, and also since August 1991 when the matter was fully considered with the assistance of four psychiatrists, circumstances may well have altered. Apart from the material I have identified in the court records, new information or advice may have become available, and other events may have happened in the time that has elapsed since the 1992 decision was made. If the Board is to consider the application again, it is preferable that it do so anew, free of any constraints that its previous decision may be thought to impose, but in the light of any further material that may be relevant to a decision whether to grant a release. Such a decision would be better arrived at on a fresh application for parole, which it is open to the applicant to make in the future.
Section 30 of the Judicial Review Act 1991 leaves it to the discretion of the Court whether or not to make any of the orders available under that section on an application for review. The discretion results from use of the word "may", which introduces the powers given by each of the four sub-sections of s.30. In my opinion, for the reasons I have given, the discretion ought in this case to be exercised against making an order that the Board's decision be set aside and that the application be referred back for further consideration.
In these circumstances, I agree that the appeal should be allowed and that the orders made below should be set aside.
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