Pollentine v Parole Board Queensland - [2018] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Pollentine v Parole Board Queensland [2018] QSC 243

PARTIES:

EDWARD POLLENTINE

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

SC No 4164 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

25 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2018

JUDGE:

Bond J

ORDER:

The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – GENERALLY - where the applicant was convicted of a number of very serious sexual offences against children in 1984 – where the applicant was detained at Her Majesty’s pleasure pursuant to the Criminal Law Amendment Act 1945 (Qld) – where the applicant applied to the Parole Board Queensland for parole under the Corrective Services Act 2006 (Qld) – where that application was refused – where the applicant contends that prior to the respondent’s decision being made the applicant had requested an oral hearing and that oral hearing had been refused – whether the applicant was denied natural justice by not being afforded the opportunity of an oral hearing – whether the decision of the respondent should be set aside and be referred back to the respondent for further consideration

Corrective Services Act 2006 (Qld), s 4, s 189, s 190, s 193, s 200, s 218, s 219, s 233, sch 4
Criminal Law Amendment Act 1945 (Qld), s 18, s 18B, s 18D s 18E
Judicial Review Act 1991 (Qld), s 20

Cutts v The Board of the Queensland Regional Parole Board [2010] QCA 60
Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208
Kioa v West (1985) 159 CLR 550
Maycock v Queensland Parole Board [2015] 1 Qd R 408
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

COUNSEL:

D P O’Gorman SC with S T Lane for the applicant

G Beacham QC with B O’Brien for the respondent

SOLICITORS:

Prisoner’s Legal Services for the applicant

Crown Law for the respondent

Introduction

On 24 July 1984, the applicant was convicted on his own plea of guilty of a number of very serious sexual offences against children, including two counts of attempted rape, four counts of carnal knowledge against the order of nature, two counts of indecent dealing with a girl under the age of 14 years, two counts of abduction, and four counts of indecent dealing with a boy under the age of 14 years.
Consequent upon the learned sentencing judge’s finding that the applicant was incapable of exercising proper control over his sexual instincts, the applicant was detained at Her Majesty’s pleasure pursuant to the Criminal Law Amendment Act 1945 (Qld) (CLAA).
In order for a person so detained to obtain release, two possibilities are open:
(a)unconditional release pursuant to s 18(5)(b) of the CLAA, consequent upon a determination by the Governor in Council that it is expedient to release 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.

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Details

Case: [2018] QSC 243
Decision Date: 25 October 2018

CaseChat Overview and Summary

Pollentine, a prisoner detained at Her Majesty’s pleasure, applied for parole to the Parole Board Queensland, a decision which was refused. The applicant contended that he was denied natural justice by not being afforded an opportunity of an oral hearing. The court was required to decide whether the applicant was denied natural justice by not being afforded the opportunity of an oral hearing, and whether the decision of the respondent should be set aside and be referred back to the respondent for further consideration.

The court examined the statutory framework which permitted an appearance by the prisoner before the Board only with leave, upon an application made in the approved form. The court held that the obligation of fairness was met by the giving of the opportunity to make submissions. The rules of natural justice did not mandate a personal appearance. The court was of the view that the absence of such an application would be a compelling factor in favour of concluding that there was no breach of the rules of procedural fairness in the present circumstances. The court also noted that if the proper approach to the present statutory framework is to regard the statute as permitting an appearance by the prisoner before the Board only with leave, upon an application made in the approved form, then the absence of such an application would be a compelling factor in favour of concluding that there was no breach of the rules of procedural fairness in the present circumstances.

The applicant's appeal was dismissed. The court found that the decision of the respondent was not flawed by any breach of the rules of procedural fairness and the application was dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208, when dealing with a breach of natural justice by denial of oral hearing argument, Dutney J expressed the view that s 189(3) should be construed as creating a limitation, namely that a personal appearance of a prisoner before the Board was only permitted with the Board’s leave. His Honour observed, at [27] (emphasis added):[27] The allegation of breach of natural justice has no substance. The applicant was given the opportunity to address the Board’s concerns in detail. In fact, he took that opportunity. The rules of natural justice do not require personal attendance in every case. All that is required is a proper opportunity to address those matters thought to be adverse to the applicant. That opportunity has been afforded. A personal appearance by a prisoner before the Board is only permitted with the Board’s leave. [There followed a footnote reference to s 189(3) of the CSA.] The application must be in the approved form. [There followed a footnote reference to s 190 of the CSA] There is no evidence that such an application in the approved form was made. On appeal, his Honour’s view was affirmed. Thus in Cutts v The Board of the Queensland Regional Parole Board [2010] QCA 60, Holmes JA (as the Chief Justice then was), with whom Muir and Fraser JJA agreed, observed (at [7] and [8], emphasis added):[7]The appellant said that the learned judge was wrong in rejecting his argument that the refusal to allow him to appear before the Board constituted a breach of the rules of natural justice. In this regard, his Honour observed that, in the context of the case, natural justice required an opportunity to address the matters thought to be adverse to the appellant, which had been afforded. He went on to observe that the Corrective Services Act 2006 (Qld) permitted an appearance before the Board only with leave, upon an application made in the approved form. [8]The content of what natural justice requires depends largely on construction of the statute under which the decision is being made; the obligation is a flexible one, to “adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”His Honour was right to have regard to the statutory limitation on appearance in person and to conclude in the circumstances of the case that the obligation of fairness was met by the giving of the opportunity to make submissions. The rules of natural justice did not mandate a personal appearance. If the proper approach to the present statutory framework is to regard the statute as permitting an appearance by the prisoner before the Board only with leave, upon an application made in the approved form, then the absence of such an application would be a compelling factor in favour of concluding that there was no breach of the rules of procedural fairness in the present circumstances. The possibility that the present statutory framework might not be so construed derives from the judgment of Jackson J in Maycock v Queensland Parole Board [2015] 1 Qd R 408. His Honour was also considering a breach of natural justice by denial of oral hearing argument and distinguished the two Cutts decisions on the basis that they were cases involving the application of s 189(3) and the case before him involved s 189(1).[12] As to s 189(1), his Honour observed:[24] The respondent submitted that s 189(1) should be construed, in conjunction with s 190, as providing for representation before the respondent by either the prisoner or a prisoner’s agent, with the respondent’s leave. However, in my view, s 190 is a machinery provision. It provides that “an application for leave to appear” before a parole board is one which must be made in a particular manner. In context, “an application for leave to appear” is one provided for under s 189. Section 189(1) does not provide for a prisoner to make an application for leave to appear before the respondent. At first blush, it seems unlikely that was an oversight. However, having regard to the history of predecessor legislation, as set out above, that may be what happened.[25] Section 189(1) should be interpreted so that “the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”. If it could be concluded that the omission of a reference to the prisoner in s 189(1) is just a clear drafting mistake and that the operation of the subsection were absurd, it would be possible to construe it even by supplying words so as to avoid absurdity. However, in my view, there is no problem of that kind which is engaged by the apparent difference between the operation of the text of s 189(1) and 189(3). Rather, s 189(1) leaves the question of any appearance before the respondent by a prisoner, as opposed to the prisoner’s agent, as a matter to be resolved by the rules of natural justice. [12] see Maycock v Queensland Parole Board [2015] 1 Qd R 408 at [28] to [31].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pollentine v Parole Board Queensland [2018] QSC 243
PARTIES:	EDWARD POLLENTINE (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO/S:	SC No 4164 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	25 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2018
JUDGE:	Bond J
ORDER:	The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – GENERALLY - where the applicant was convicted of a number of very serious sexual offences against children in 1984 – where the applicant was detained at Her Majesty’s pleasure pursuant to the Criminal Law Amendment Act 1945 (Qld) – where the applicant applied to the Parole Board Queensland for parole under the Corrective Services Act 2006 (Qld) – where that application was refused – where the applicant contends that prior to the respondent’s decision being made the applicant had requested an oral hearing and that oral hearing had been refused – whether the applicant was denied natural justice by not being afforded the opportunity of an oral hearing – whether the decision of the respondent should be set aside and be referred back to the respondent for further consideration Corrective Services Act 2006 (Qld), s 4, s 189, s 190, s 193, s 200, s 218, s 219, s 233, sch 4 Criminal Law Amendment Act 1945 (Qld), s 18, s 18B, s 18D s 18E Judicial Review Act 1991 (Qld), s 20 Cutts v The Board of the Queensland Regional Parole Board [2010] QCA 60 Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208 Kioa v West (1985) 159 CLR 550 Maycock v Queensland Parole Board [2015] 1 Qd R 408 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
COUNSEL:	D P O’Gorman SC with S T Lane for the applicant G Beacham QC with B O’Brien for the respondent
SOLICITORS:	Prisoner’s Legal Services for the applicant Crown Law for the respondent