Queensland Parole Board v McGrane - [2014] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Parole Board v McGrane [2014] QCA 193

PARTIES:

QUEENSLAND PAROLE BOARD
(appellant)
v
JAMES PATRICK McGRANE
(respondent)

FILE NO/S:

Appeal No 2695 of 2014
SC No 7255 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2014

JUDGES:

Muir and Morrison JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal be allowed.

2.    The order of the primary judge be set aside.

3.    The respondent’s application for judicial review be dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the respondent was 17 when he raped and murdered his 21 year old sister – where the respondent was sentenced to 15 years imprisonment for the offence of rape and to life imprisonment for the offence of murder – where the respondent has made a number of unsuccessful applications for parole, including his latest application dated 8 April 2011 – where the appellant decided on 25 May 2012 not to grant the respondent’s application for parole – where the respondent sought judicial review of the appellant’s decision – where the primary judge ordered that the decision to refuse to grant parole to the respondent be set aside and the matter be remitted to the appellant to be reconsidered according to the primary judge’s judgment – where the appellant appeals against that decision – whether the primary judge erred in finding that the appellant had to consider whether possible conditions of parole could be imposed in order to make an appropriate assessment of the respondent’s risk to the community and the merits of the respondent’s case for release on parole

Corrective Services Act 2006 (Qld), s 181(3), s 200, s 227(1)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Judicial Review Act 1991 (Qld), s 33

McGrane v Queensland State Parole Board [2014] QSC 17, considered

COUNSEL:

M Hinson QC, with S A McLeod, for the appellant
M Black for the respondent

SOLICITORS:

Crown Solicitor Brisbane for the appellant
Prisoners Legal Service for the respondent

MUIR JA: Introduction The respondent was 17 when he raped and murdered his 21 year old sister.

The respondent, who was staying at the victim’s home for her protection in the absence of her male friend, bound and gagged her. He used a knife to cut away her clothes, rubbed his hands over her naked body and raped her. After stabbing her once in the front of her chest penetrating her heart, he rolled her over onto her stomach and stabbed her 10 or more times in the back with substantial force. Four of the knife wounds in the back also penetrated the victim’s heart. The respondent pleaded guilty to rape but not guilty…

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: [2014] QCA 193
Decision Date: 12 August 2014

CaseChat Overview and Summary

In the case of Queensland Parole Board v McGrane, the appellant, the Queensland Parole Board, sought to appeal against a decision of the primary judge which had ordered that the decision to refuse parole be set aside and remitted to the appellant for reconsideration. The respondent, McGrane, had been convicted of the rape and murder of his sister and was serving a sentence of 15 years for rape and life for murder. McGrane had made a number of unsuccessful parole applications, the latest of which was refused by the appellant on 25 May 2012. McGrane then sought judicial review of the decision and the primary judge found that the appellant had erred in its consideration of the matter and ordered the decision be set aside and remitted for reconsideration. The appellant argued that the primary judge was wrong to order that the appellant reconsider the matter, and that the primary judge should not have directed the appellant to consider conditions of parole as a part of the reconsideration.

The court was required to consider the scope of the appellant’s powers in making a decision to refuse parole and whether the primary judge was correct in ordering that the decision be set aside. The court also had to consider whether the primary judge was correct in directing the appellant to consider conditions of parole as part of the reconsideration. The court noted that the appellant’s decision-making process was complex and the appellant had broad discretion in making its decision. The court found that the primary judge had erred in ordering that the decision be set aside and in directing the appellant to consider conditions of parole. The primary judge had incorrectly interpreted the appellant’s powers and had imposed a condition of parole upon the appellant that was outside of its statutory powers.

The court allowed the appeal and set aside the order of the primary judge. The court found that the primary judge had erred in ordering that the decision be set aside and that the appellant had not erred in its consideration of McGrane’s parole application. The court held that the appellant was not required to consider conditions of parole as part of its reconsideration of McGrane’s parole application. The application for judicial review was dismissed.

Orders

Orders of the court

1. The appeal be allowed.

2. The order of the primary judge be set aside.

3. The respondent’s application for judicial review be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Parole Board v McGrane [2014] QCA 193
PARTIES:	QUEENSLAND PAROLE BOARD (appellant) v JAMES PATRICK McGRANE (respondent)
FILE NO/S:	Appeal No 2695 of 2014 SC No 7255 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2014
JUDGES:	Muir and Morrison JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The order of the primary judge be set aside. 3. The respondent’s application for judicial review be dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the respondent was 17 when he raped and murdered his 21 year old sister – where the respondent was sentenced to 15 years imprisonment for the offence of rape and to life imprisonment for the offence of murder – where the respondent has made a number of unsuccessful applications for parole, including his latest application dated 8 April 2011 – where the appellant decided on 25 May 2012 not to grant the respondent’s application for parole – where the respondent sought judicial review of the appellant’s decision – where the primary judge ordered that the decision to refuse to grant parole to the respondent be set aside and the matter be remitted to the appellant to be reconsidered according to the primary judge’s judgment – where the appellant appeals against that decision – whether the primary judge erred in finding that the appellant had to consider whether possible conditions of parole could be imposed in order to make an appropriate assessment of the respondent’s risk to the community and the merits of the respondent’s case for release on parole Corrective Services Act 2006 (Qld), s 181(3), s 200, s 227(1) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Judicial Review Act 1991 (Qld), s 33 McGrane v Queensland State Parole Board [2014] QSC 17, considered
COUNSEL:	M Hinson QC, with S A McLeod, for the appellant M Black for the respondent
SOLICITORS:	Crown Solicitor Brisbane for the appellant Prisoners Legal Service for the respondent