Application of Parole Laws in the High Court: Minogue v State of Victoria [2018] HCA 27

In Craig William John Minogue v State of Victoria [2018] HCA 27 (20 June 2018) the High Court has held, in answer to questions stated in a special case, that the Corrections Act 1986 (Vic) ("the Act") section 74AAA dealing with conditions for the making of a parole order for a prisoner who murdered a police officer, does not, on its proper construction, apply to Craig Minogue ("the plaintiff") .

Background Facts

The plaintiff was convicted on 12 July 1988 in the Supreme Court of Victoria, of one count of murder arising from the explosion of a car bomb placed in the vicinity of the Russell Street Police Complex  and the Melbourne Magistrates' Court building on 27 March 1986. The explosion resulted in the death of a policewoman, Angela Rose Taylor, a constable in the Victorian police force, and in injuries to 22 other people. As a result the plaintiff was sentenced to imprisonment for life with a non-parole period  of 28 years. 

Parole Issues

The plaintiff's non-parole period expired on 30 September 2016 and the plaintiff then became eligible for the grant of parole. Application was made to the Adult Parole Board (“the Board”).  The Board made a decision to proceed to parole planning; however, before the Board could complete the performance of its functions, the Corrections Act 1986 (Vic) (“the Act”) was amended by the insertion of section 74AAA.  This new section provides, in subsection 74AAA(1), that the Board must not make a parole order in respect of a prisoner convicted and sentenced to a term of  imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless it is satisfied that the prisoner is in imminent danger of dying or is seriously incapacitated.

After the commencement of this proceeding, the Act was amended again, with section 127A being inserted into the Act on 20 December 2017. The new section 127A provides that, "to avoid doubt" the amendments made by made by Part 2 of the 2016 Amendment Act (which inserted the above described section 74AAA) also apply to a prisoner who regardless of whether, before the commencement of those amendments, the prisoner had become eligible for parole, or the prisoner had taken steps to ask the Board to grant the prisoner parole, or the Board had begun any consideration of whether the prisoner should be granted parole - effectively making the application of section 74AAA retrospective.

Plaintiff's Case

The plaintiff argued that sections 74AAA and 127A of the Act did not apply to the exercise by the Board of its jurisdiction and power to make a parole order in respect of him because: 

• in the case of section 74AAA, his parole eligibility date had arisen, he had applied for parole, and the Board's jurisdiction had been enlivened and exercised, before the commencement of  section 74AAA; and, 
• in the case of section 127A, he had instituted these proceedings before the commencement of that section.

Further the  plaintiff  argued that section 74AAA did not apply to his application for parole because it is expressed to turn upon the prisoner's having been convicted and sentenced for an offence involving a particular state of mind at the time of offending, that being, "knowledge or recklessness" as to whether the deceased was a police officer as defined in the Act and that state of mind was not an issue arising in his trial and was not a matter established by his conviction. 

The plaintiff also argued that if the Court found that sections 74AAA and 127A of the Act applied to the making of a parole order in respect of the plaintiff,  that those provisions then exceeded the legislative power of the Victoria Government on the ground that they are contrary to the rule of law and inconsistent with the  Commonwealth Constitution because they purport to affect the criteria for the grant of the plaintiff’s parole, or divest the Board's jurisdiction or power to order the plaintiff’s release on parole, after it had been:

• enlivened by the expiration of the non-parole period, 
• engaged by the making of an application for parole, and 
• exercised by the decision to proceed to parole planning.

Special Case and High Court

On 21 December 2017 Gordon J referred the parties’ special case for consideration by the Full Court. 

The High Court in answering the questions stated in the special case, held that section 74AAA,  properly construed, applied to a prisoner sentenced on the basis that the prisoner knew, or was reckless as to whether, the person murdered was a police officer and found that the plaintiff was not sentenced on that basis.  In considering the remarks of the sentencing judge, the High Court found they contained no reference to the plaintiff's state of mind concerning the identity of the police constable who was killed.  The offence committed was indiscriminate and no particular person or class of persons was targeted, as a result, the High Court concluded that section 74AAA did not apply to the plaintiff.

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Craig William John Minogue v State of Victoria  [2018] HCA 27 (20 June 2018)

Russell Street bomber challenges legal change that denies him parole (The Guardian 11 April 2017).