KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ. On 27 March 1986 a stolen car containing an explosive device was parked in the vicinity of a number of public buildings in Melbourne, including the Russell Street Police Complex and the Melbourne Magistrates' Court building. A little after 1:00pm the explosive device was detonated. It caused serious injuries to a number of persons and the subsequent death of Angela Rose Taylor, who was a constable in the Victorian police force. Constable Taylor had been on duty in the court and was crossing the roadway in her lunch hour when the bomb exploded.
The plaintiff and three co-accused were charged with the murder of Constable Taylor. The Crown case relied upon the doctrine of concert or joint enterprise. The case was that the plaintiff and the other accused were parties to a common plan to explode the bomb. The Crown conceded that it could not prove the part played by any particular accused, but invited the jury to infer that each accused was a guilty participant. After a trial before a jury in the Supreme Court of Victoria, the plaintiff and one co-accused were convicted of the murder.
The plaintiff was sentenced by Vincent J on 24 August 1988 to a term of imprisonment for life with a non-parole period of 28 years. The plaintiff's non‑parole period ended on 30 September 2016 for the purposes of the Corrections Act 1986 (Vic) ("the Corrections Act"). It marked his "parole eligibility date" within the meaning of reg 82 of the Corrections Regulations 2009 (Vic). It is not disputed that at this time the Adult Parole Board of Victoria ("the Board"), which is established under the Corrections Act, had power under s 74(1) of that Act to order that the plaintiff be released on parole. In determining whether to make a parole order, s 73A requires that the Board give paramount consideration to the safety and protection of the community.
The practice of the Board is that it will only consider whether to make a parole order with respect to a prisoner if the prisoner makes an application for parole. The plaintiff made such an application on 3 October 2016.
The procedure undertaken by the Board when an application for parole is made to it is first to make a decision as to whether to proceed to parole planning. It does so after receipt of a report from the Case Management Review Committee ("the CMRC") of the prison in which the person is detained. The CMRC's report supported the plaintiff's parole application. Such a recommendation does not bind the Board.
On 20 October 2016 the Board decided to "proceed with parole planning" and to consider the plaintiff's suitability for release on parole on receipt of a Parole Suitability Assessment from Community Correctional Services ("the CCS"). An officer of the CCS was subsequently appointed to the plaintiff's case. On 25 October 2016 the plaintiff provided extensive written submissions in support of his application.
On 14 December 2016 s 74AAA ("the 2016 Amendment") was inserted into the Corrections Act. Sub-sections (1) to (3) provide:
"(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) 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 an application for the parole order is made to the Board by or on behalf of the prisoner.
(2) The application must be lodged with the secretary of the Board.
(3) In considering the application, the Board must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence."
"Police officer" is defined by sub-s (6) to mean a police officer:
"(a) who, at the time the murder of that police officer occurred, was performing any duty or exercising any power of a police officer; or
(b) the murder of whom arose from or was connected with the police officer's role as a police officer, whether or not the police officer was performing any duty or exercising any power of a police officer at the time of the murder."
The evident purpose of the 2016 Amendment, where the conditions referred to in the sub-sections set out above are present, is to limit the circumstance in which parole may be granted to a prisoner to whom it applies effectively to the end of his or her life. Section 74AAA(4) provides:
"After considering the application, the Board must not make a parole order under section 74 or 78 (as the case may be) in respect of the prisoner unless the Board -
(a) is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner -
(i) is in imminent danger of dying, or is seriously incapacitated and, as a result, the prisoner no longer has the physical ability to do harm to any person; and
(ii) has demonstrated that the prisoner does not pose a risk to the community; and
(b) is further satisfied that, because of those circumstances, the making of the parole order is justified."
Sub-section (5) provides that, "[f]or the avoidance of doubt", s 73A also applies to the determination of the Board under the section.
When it was enacted, the 2016 Amendment did not contain any transitional provisions. On 20 December 2017 s 127A was inserted into the Corrections Act. It provides:
"To avoid doubt, and without limiting the application of the amendments made by Part 2 of the Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016 in respect of applications for parole made on or after the commencement of those amendments -
(a) the amendments made by that Part also apply to a prisoner convicted and sentenced as mentioned in section 74AAA(1), regardless of whether, before the commencement of those amendments -
(i) the prisoner had become eligible for parole; or
(ii) the prisoner had taken any steps to ask the Board to grant the prisoner parole; or
(iii) the Board had begun any consideration of whether the prisoner should be should be [sic] granted parole; and
(b) the Board may, in its discretion, treat any steps taken by a prisoner to ask the Board to grant the prisoner parole, being steps taken before the commencement of those amendments, as being an application lodged with the secretary of the Board under section 74AAA(2)."
In January 2017, before s 127A was enacted, the plaintiff commenced proceedings in this Court. In his Amended Writ of Summons filed on 16 June 2017 he sought declarations that s 74AAA does not apply to him or to his application for a grant of parole and that it is invalid in so far as it purports to apply to him. The questions now before this Court are limited to whether s 74AAA applies to the plaintiff.
After commencing his proceedings, the plaintiff asked the Board not to take any further action in relation to his application for parole until the determination of these proceedings. The Board acceded to that request. At the time the parties agreed to state questions of law for the opinion of this Court arising out of the special case, the plaintiff's application for parole had not progressed beyond the steps outlined above.
The initial questions
The following questions were initially stated for the opinion of the Court:
"(a) Is s 74AAA of the [Corrections] Act capable of applying to the Plaintiff in circumstances where:
(i) before the commencement of that section:
(A) the Plaintiff's non-parole period had ended or parole eligibility date had occurred;
(B) the Plaintiff had made an application for parole; or
(C) the Board had made a decision to proceed with parole planning in respect of the Plaintiff; or
(ii) before the commencement of s 127A of the [Corrections] Act, the Plaintiff had commenced this proceeding?
(b) Is s 74AAA of the [Corrections] Act capable of applying to the Plaintiff in circumstances where it was not an element of the offence of which the Plaintiff was convicted that the Plaintiff knew, or was reckless as to whether, the deceased was a police officer as defined by s 74AAA(6)?
(c) If the answer to (a) and (b) is 'yes', is s 74AAA and/or s 127A of the [Corrections] Act invalid in their application to the Plaintiff in that they do not operate consistently with the Commonwealth Constitution and the constitutional assumptions of the rule of law?
(d) Who should pay the costs of the special case?"
The further questions
During the course of the hearing the parties stated two further questions. They are as follows (with some minor grammatical amendments to question (bb)):
"(ba) If the answer to question (b) is 'yes', is s 74AAA capable of applying to the Plaintiff in circumstances where the sentencing court, in determining the Plaintiff's sentence, did not make a finding for the purposes of s 3(2)(a) of the Crimes Act 1958 (Vic)?
(bb) If the answer to question (b) and question (ba) is 'yes', is s 74AAA capable of applying to the Plaintiff only if he was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a police officer as defined by s 74AAA(6)?"
The remaining question
If question (bb) is answered in the affirmative, there would remain only one question the answer to which may finally resolve this matter. Whether it is appropriate to do so will be discussed later in these reasons. It may be formulated as:
"(bc) If the answer to question (bb) is 'yes', does s 74AAA apply to the Plaintiff?"
Question (a)
There is no right or entitlement to release on parole at the expiration of a minimum term determined at sentencing. It always remains a possibility that a prisoner may be required to serve the whole head sentence imposed. The expiration of a minimum term has been said merely to provide an opportunity for the prisoner to be released and to constitute a factum by reference to which a statutory parole system operates.
The plaintiff does not now submit that he has a right to parole. He accepts that it is a privilege which is in the grant of the Executive. The right of which he speaks is a right to have the process that he had initiated by his application for parole completed. He submits that the Board's power is engaged once it begins consideration of his application. Once it has commenced it is required to complete its task. Its task is to be completed by reference to the law that was in force prior to the 2016 Amendment, he contends.
A similar argument was put in Attorney-General (Q) v Australian Industrial Relations Commission. A newly enacted section in the Workplace Relations Act 1996 (Cth) required the Commission to cease arbitrating if it was satisfied that the industrial dispute was covered by a State award or employment agreement. The question was whether it applied to a proceeding commenced before it was enacted. The unions submitted that they had acquired the right to have their disputes arbitrated under the pre-existing law. In the joint judgment it was explained that the right asserted is more accurately described as a public law right to require the Commission to observe its duty to comply with the laws that exist from time to time. A right of that nature is a right to have a claim or application considered in accordance with the statute that governs its determination. Their Honours went on to say that if the law is changed before an award is made, by placing additional restraints or conditions on the exercise of the power, then the obligation to make a determination according to law is correspondingly modified.
In the context of the executive release of prisoners on parole it has been observed in a number of cases, most recently in Crump v New South Wales, that statutes providing for parole may be expected to change from time to time, to reflect changes in government policy and practice. In rejecting the argument put by the plaintiff in Crump that the Parole Board was obliged to determine his application for parole by reference to the law in existence at the time that he was sentenced, Heydon J pointed out that the plaintiff had no right or entitlement that the previous statutory regime should continue to apply to him. The question of what a successful parole application may require is one to be answered in the light of whatever the legislation requires at the relevant time. The relevant time would be when the application for parole comes to be determined.
No question of an accrued right to have the plaintiff's application for parole determined by reference to the law prior to the 2016 Amendment arises. His reliance on provisions such as s 14(2) of the Interpretation of Legislation Act 1984 (Vic) and cases such as Esber v The Commonwealth is misplaced. In the latter respect, s 74AAA cannot be said impermissibly to interfere with the judicial power to be exercised in these proceedings.
In any event, the plaintiff's argument fails to take account of s 127A. Regardless of the nature of the right to have his application determined, s 127A(a) expressly provides that s 74AAA applies to a prisoner in his position. It says that s 74AAA will apply regardless of three circumstances: whether a prisoner had become eligible for parole; whether the prisoner had taken steps to ask the Board to grant parole; and whether the Board had begun consideration of whether parole should be granted. These were the three reasons identified by the plaintiff in his Second Further Amended Statement of Claim as to why s 74AAA did not apply to him.
The plaintiff contends that s 127A does not apply to him because it was not enacted until after he had commenced proceedings and should not be construed as operating retrospectively. He calls in aid the observation of Viscount Dilhorne in delivering the advice of the Privy Council in Zainal bin Hashim v Government of Malaysia that for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that it was the intention of the legislature. Counsel for the plaintiff submits that that principle of construction is of particular importance in the interpretation of legislation affecting the criminal justice system or otherwise impinging on the liberty of the subject.
That contention cannot be accepted. Read in context, the opening words of s 127A, "[t]o avoid doubt", signify that the provision is declaratory of the intended operation of s 74AAA and, therefore, that s 127A operates from the date of commencement of s 74AAA. As this Court has observed, it is open to Parliament to enact such a law notwithstanding that it may affect or even render nugatory pending proceedings.
The answer to question (a) is "yes".
Question (b)
It may be accepted, as the plaintiff points out, that s 74AAA is different from the provisions dealt with by this Court in Crump and Knight v Victoria. Although the provisions in those cases and s 74AAA have in common a purpose to limit the availability of parole and although each may, to an extent, have been modelled on its predecessor, they refer to different classes of prisoner. Crump concerned a parole application made by "a serious offender the subject of a non‑release recommendation" and the legislation in Knight was directed expressly to "the prisoner Julian Knight". The prisoner to whom s 74AAA applies is one who has been "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" (as defined in sub-s (6)).
The construction which the plaintiff first advances is that for s 74AAA to apply, a prisoner must have been convicted and sentenced for an offence which has as an element knowledge of or recklessness about the identity of the person murdered as a police officer. This is said to follow from the reference to the prisoner being convicted and sentenced "for" those matters in conjunction with the murder. The plaintiff points out that he was not convicted "'for' the murder of a police officer"; and he was not convicted and sentenced "'for' the murder of a person who he knew was, or was reckless as to whether the person was, a police officer". The defendant does not suggest to the contrary.
The defendant points out that there never has been and there is not now an offence having these elements. There is no offence which contains as an element that the murder victim was a police officer. The plaintiff's argument would mean that s 74AAA had no operation at the time that it was enacted or now. Yet it expressly directs attention to offences committed before the section came into force. There is obvious force in these contentions.
The plaintiff's answer to the claim that his argument gives the section almost no operative effect is that it might apply in the future if an offence was created having those elements. Another possibility is that those questions could in the future be specifically raised at trial and a special verdict sought. A third is where a person is sentenced on the basis of specific findings to these effects.
These submissions cannot be accepted. The text of s 74AAA(1) does not suggest some possible future operation for the section. It is, as the defendant points out, directed to the past events of conviction and sentence. It is not a proper approach to construction to deny a provision any realistic operation. The plaintiff's third possible sphere of operation for the provisions may be taken as directed to the questions which follow, but it is not addressed to the present question.
The answer to question (b) is "yes".
Questions (ba) and (bb)
It is convenient to deal with these questions together. Both have as their basal proposition that a prisoner's knowledge or recklessness is to be understood as a circumstance connected with the sentencing of the prisoner for murder. On this approach s 74AAA(1) is taken to operate distributively. It is to be read as requiring as a fact that the prisoner has been convicted for the murder of a person who was a police officer; and as a further fact that the prisoner knew or was reckless as to whether the person was a police officer.
Construction generally
The first limb of the plaintiff's argument respecting question (ba) is that the reference to sentencing in s 74AAA(1) is to sentencing pursuant to s 3(2)(a) of the Crimes Act 1958 (Vic) ("the Crimes Act"). Section 3(2)(a) provides for a standard sentence of 30 years if the prosecution proves beyond reasonable doubt, relevantly, that the person murdered was an emergency worker and the accused knew or was reckless as to that fact. An emergency worker is defined to include a police officer.
Section 3(2)(a) could not have applied to the plaintiff when he was sentenced. It was enacted afterwards. But the answer to question (ba) must in any event be "yes". True it is that the same mental conditions are referred to in s 74AAA(1), but it is apparent from a close textual comparison of the two provisions that their respective areas of operation are very different.
A "police officer" as defined in s 3(1) of the Corrections Act means a police officer within the meaning of the Victoria Police Act 2013 (Vic) ("the Victoria Police Act"). Consequently, a "police officer" within the meaning of s 74AAA(1) of the Corrections Act (as defined in s 74AAA(6)) means a police officer within the meaning of the Victoria Police Act who, at the time of the murder of that police officer, was performing any duty or exercising any power of a police officer or whose murder arose from or was connected with the police officer's role as a police officer whether or not he or she was performing any duty or exercising any power of a police officer at the time of the murder. By contrast, s 3(2) of the Crimes Act applies to the sentence to be imposed for the murder of a "custodial officer" on duty or an "emergency worker" on duty. A "custodial officer" for that purpose means a custodial officer within the meaning of s 10AA of the Sentencing Act 1991 (Vic), which, although it includes "a police custody officer" within the meaning of the Victoria Police Act, does not include a "police officer" within the meaning of the Victoria Police Act. A "police custody officer" as defined is a person employed in Victoria Police under Pt 3 of the Public Administration Act 2004 (Vic) who is authorised to act as a police custody officer under s 200D of the Victoria Police Act. A "custodial officer" as so defined also includes: a Governor, prison officer or escort officer within the meaning of the Corrections Act; a person authorised under the Corrections Act to exercise the functions or powers of a Governor, prison officer or escort officer; and a person authorised under s 9A(1A) or (1B) of the Corrections Act to exercise functions or powers referred to in those sub‑sections. An "emergency worker" means a police officer or protective services officer within the meaning of the Victoria Police Act and also includes ambulance officers, fire fighters of various kinds and State Emergency Service operators of several kinds. Thus it is apparent that the range of victims to which s 74AAA applies is at once both broader and more circumscribed than the range of victims to which s 3(2)(a) of the Crimes Act applies. It is broader in as much as it applies to police officers whether or not they are on duty. It is more circumscribed to the extent that it only applies to police officers, whereas s 3(2)(a) of the Crimes Act applies not only to police officers but also to protective services officers, police custody officers, prison officers, escort officers and other emergency service workers.
Viewed in contrast to s 3(2)(a), there is nothing in the text or purpose of s 74AAA(1) to suggest as narrow an operation as that for which the plaintiff contends. Its natural reading is that whenever the circumstances provided for in s 74AAA(1) are present, s 74AAA applies.
Question (ba) should be answered "yes".
The essential issue with respect to question (bb) is how the factum that "the prisoner knew was, or was reckless as to whether the [murdered] person was, a police officer" is to be established. Clearly enough both facts - that of conviction for the murder of a police officer and that of the prisoner's knowledge or recklessness as to the person being a police officer - are required to be present before s 74AAA(4) applies. The question is by what means are they to be established.
Whether the deceased officer was a police officer who at the time of the murder was performing duties or exercising powers of a police officer or whose murder was connected with his or her role are all matters critical to the assessment of the nature and gravity of the crime and at least in some cases also the prisoner's moral culpability. Thus they should be readily apparent from the sentencing remarks.
The critical issue is how it is to be established whether at the time of the murder the prisoner knew or was reckless as to whether the victim was a police officer performing duties or exercising powers of a police officer or whose murder was connected with his or her role as a police officer ("a police officer within the meaning of s 74AAA(1)").
It is the plaintiff's contention that s 74AAA(1) is satisfied and s 74AAA(4) applies only if a prisoner was sentenced on the basis that he or she knew or was reckless as to whether the person murdered was a police officer within the meaning of s 74AAA(1) at the time the act causing death was committed. On this approach the Board would apply the findings made by the sentencing judge. Those findings would be the only evidence upon which the Board acts.
The defendant argues that the question is entirely one for the Board. It may satisfy itself about a prisoner's state of mind at the relevant time by making such enquiries as it considers necessary. It would not be limited to the court record and sentencing remarks. It could even disagree with a finding made by the court.
The principal difficulty in the way of the construction for which the defendant contends is that it would seem to require the addition of words to s 74AAA(1) to make it clear that the Board is intended to satisfy itself as to the question of the prisoner's state of mind. Those drafting the sub-section could reasonably have supplied words to this effect had it been intended that the Board was to conduct an enquiry into facts other than those which formed the basis for the prisoner's sentencing. It is no function of the courts to fill in gaps in legislation. There is no clear necessity for such an implication in order to give sense and meaning to s 74AAA(1) construed in its context. The text of s 74AAA(1) points to the sentencing process. Section 74AAA(3) requires the Board to have regard to the court record and sentencing remarks. It cannot be said to be necessary to advance the purpose of s 74AAA for the Board to undertake its own enquiry.
True it is that the Corrections Act gives the Board a power to "inform itself on any matter as it sees fit". But this general power is subject to particular provisions which identify the task which the Board is to undertake. There are a number of provisions in the Corrections Act from which it may be inferred that the Board is to make enquiries in order to satisfy itself about matters pertaining to a prisoner. By way of example, s 74AABA(1) provides that the Board must not make a parole order in respect of a prisoner serving a sentence of imprisonment for an offence of murder, conspiracy to murder, accessory to murder or manslaughter "unless the Board is satisfied" that the prisoner has co-operated satisfactorily in the investigation to identify the body or remains of the victim or the place where they may be found. For that purpose, sub-s (3) of that section requires the Board to have regard to certain reports and to the question of the capacity of the prisoner to co-operate in the investigation of the offence.
There are other provisions which expressly require the Board to consider circumstances or to make enquiries as to a prisoner's condition. Section 77(3) and (5) provide that the Board must cancel the parole of a prisoner in certain circumstances "unless the Board is satisfied that circumstances exist that justify the continuation of the parole". Section 77A(2) provides that it may revoke the cancellation of a prisoner's parole "if it is satisfied that exceptional circumstances exist". Section 78(4) contains a similar provision with respect to making a parole order where parole has been cancelled on a previous occasion. Section 77D provides that the Board may arrange for a medical, psychiatric or psychological examination of a prisoner and require a report in determining whether to make, vary, cancel or revoke the cancellation of a parole order.
Provisions such as these may be contrasted with s 74AAA(1), which contains no mention that the Board inform itself. It describes the prisoner to whom it is to apply by reference to ascertainable facts and s 74AAA(3) enjoins the Board to have regard to the record of the court in relation to the offending, including the judgment and reasons for sentence. The natural reading of s 74AAA(1) is that the mental element necessary is to be gleaned from what has been said by the court on sentencing. It is not necessary to resort to principles which might require a strict approach to the construction of s 74AAA(1), for which the plaintiff contends. A construction which limits the role of the Board in the way explained follows from its terms. Reference to a stricter approach, however, serves to illuminate aspects of the operation of the sub-section, properly construed.
The consequence of s 74AAA(4) applying is effectively to deny a prisoner an opportunity for parole. In Smith v Corrective Services Commission (NSW) reference was made to the established principle of statutory construction that a penal statute, or one affecting a person's liberty, should be construed strictly. The Court was there dealing with a provision concerning the remission of a period of imprisonment with respect to a prisoner where parole had been revoked. It is unnecessary to decide whether this principle should be viewed as a general rule of construction, as a subsidiary rule of construction, or merely as a matter of context because, however this strict approach to construction is viewed, it reinforces the limited role for the Board with respect to s 74AAA(1). That is so regardless of the fact that the plaintiff has no right, as such, to parole, as previously discussed.
Consistently with a strict approach to construction, regard may be had to the consequences of a prisoner's state of mind being left as a matter for the Board. It is to be recalled that when sentencing a court will not take into account facts which are adverse to the interests of the accused unless they are established beyond reasonable doubt. This may be contrasted with the position of the Board, which is not required to make findings to any particular standard. It is not bound by the rules of evidence or any practice or procedure applying to courts in the performance of its powers, functions or duties. It is not obliged to accord natural justice. It may also be borne in mind that on the defendant's construction, the Board will be making an enquiry into the state of mind of a prisoner with respect to events which occurred many years, probably decades, ago.
The defendant submits that to limit the Board to findings made on sentencing would prevent it taking into account any new or compelling evidence bearing upon the prisoner's state of mind at the relevant time. Admissions made whilst in prison might fall into this category. But even if s 74AAA did not apply in a particular case, it would not prevent the Board taking a matter such as this into account in determining whether to grant parole.
Construction by reference to the Charter
The plaintiff seeks to support his construction of s 74AAA by reference to s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter"), which requires that:
"So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights."
The Charter may be overridden by legislation, but the 2016 Amendment contains no such provision. The Charter applies.
The human rights to which the plaintiff refers are those listed in s 10(b) of the Charter, which prohibits a person being "treated or punished in a cruel, inhuman or degrading way". Section 10 is in substantially the same terms as Art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) ("the Convention").
Section 32(2) of the Charter provides that in interpreting a statutory provision regard may be had to international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right to which the Charter applies. In Vinter v United Kingdom, the European Court of Human Rights (Grand Chamber) ("the ECHR") said that there is now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is possible. The discretion of the Secretary of State to grant parole to prisoners serving a whole life minimum term was confined by a Prison Service Order, which stated that release would only be ordered in circumstances similar to those found in s 74AAA(4) in the present case. The ECHR held that it violated Art 3 because it amounted to ill-treatment. It approved observations that in such a circumstance a prisoner can never atone for his offence and his punishment continues until death.
In the course of argument it was pointed out that the construction of s 74AAA(1) for which the plaintiff contends would not render it compatible with the human right upon which he relies. It would still apply to prisoners who fulfilled the description there provided. At best, his construction might narrow the class of persons to whom it applies.
In further submissions provided subsequent to the hearing the plaintiff submits that s 74AAA(1) would accord with s 32(1) if a construction minimised the extent of the incompatibility with or encroachment on human rights. His construction would infringe the human rights of fewer people and would remove the Board's power to grant parole only with respect to persons who had been found by a sentencing court, or a jury on special verdict, to have had the requisite state of mind. By way of analogy, the plaintiff draws upon what has been said about the approach to construction required by the principle of legality, namely that a construction which avoids, minimises or mitigates an encroachment on rights and freedoms is to be preferred. But despite the apparent logic of that submission, no jurisprudence of the ECHR or other foreign or international court was identified as supporting it.
It is not necessary, however, to determine whether s 32(1) can be applied in this way. The ordinary processes of construction clearly favour a narrower approach and if the Charter applied in the way contended it would lead to no different conclusion.
Question (bb) should be answered "yes".
Question (bc)
The affirmative answer to question (bb) means that there is only one further question remaining upon which the resolution of this matter depends, namely, whether s 74AAA in fact applies to the plaintiff, having regard to s 74AAA(1).
The defendant submits that a preferable question might be whether it would be open to the Board to conclude that s 74AAA(1) applies to the plaintiff. The submission overlooks that the defendant has itself raised the question in its pleading in this matter. It alleges that "the Plaintiff was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a 'police officer' as defined in s 74AAA(6)". The issue is therefore before this Court. Further, all relevant evidence as to this issue is contained in the special case and the parties have addressed it in their submissions. It was for these reasons that the Court advised the parties that in the event that the answer to question (bb) is in the affirmative, it was inclined to answer the remaining question.
Section 74AAA(1) refers to knowledge or recklessness on the part of the person convicted of murder as to the fact that the person murdered was a police officer. For the offence of murder, recklessness requires that the accused be aware of the probability that his or her act would cause death or grievous bodily harm. It requires a subjective appreciation or actual foresight on the part of the accused of the probability of the consequence of the act to which he or she was a party.
The defendant accepts what is required for recklessness in connection with the offence of murder, but submits that for the purposes of s 74AAA(1) it might be necessary for the plaintiff only to have been aware of the possibility that the murder victim was a police officer. This approach is said to be available because the sub-section is concerned with the question of parole. It does not, however, accord with the proper construction of s 74AAA(1), which puts the approach to questions of knowledge in the context of the sentencing of the prisoner for the offence of murder. For the plaintiff to have been sentenced on the basis of his recklessness as to whether the deceased was a police officer, a finding by the sentencing judge would have been required, beyond reasonable doubt, as to the plaintiff's subjective appreciation or actual foresight of that fact and his determination to proceed regardless of it.
The defendant submits that regard should also be had to the reasons of the Court of Criminal Appeal in this matter, but that would not accord with the terms of s 74AAA, which speaks only of a person being sentenced on a particular basis. Consistently with its terms, regard could only be had to the reasons of an appellate court if it itself engaged in sentencing, that is to say, by allowing an appeal and re-sentencing.
The remarks of the sentencing judge contain no reference to the plaintiff's state of mind concerning the identity of the police constable who was killed. That is understandable, given that the offence committed was indiscriminate in its possible effect with respect to victims. Whilst it was possible that police officers could be affected, so could persons working in the court and other public buildings, or people making their way along the street. No particular person or class of person was targeted by the common enterprise and this would seem to be required by s 74AAA(1) and (6).
The reasons of the sentencing judge reveal that the plaintiff and those with whom he acted sought to achieve a maximum effect by placing the vehicle not only in front of the Police Complex and opposite the Magistrates' Court building but also, as his Honour said, "in a major thoroughfare, close to the centre of the city of Melbourne and only a short distance from the intersection of that thoroughfare with La Trobe Street which also carries a great deal of traffic. The explosion occurred at lunchtime, on a working day, when by reason of the proximity of the Easter holiday period one might reasonably have expected the roadways and footpaths in the vicinity to be even busier than might normally be the situation."
His Honour found that the location selected for the bombing and the time chosen for its detonation were powerful indicators of the underlying motivation for it, namely the plaintiff and his co‑accused's "hatred and contempt for this society and its institutions". There was evidence of the plaintiff's hatred of police, but there was no finding to this effect made by the sentencing judge. His Honour did make reference to "violent actions" directed against members of the police force, but this was in connection with the application of the principle of deterrence as relevant to sentencing. It was not directed to the state of mind of the plaintiff at the relevant time.
The plaintiff was not sentenced on the basis that he knew that the person murdered was a police officer within the meaning of s 74AAA(1) or that he was reckless as to that fact. Section 74AAA does not apply to him.
Question (c)
The question whether s 74AAA and s 127A are invalid as contrary to constitutional assumptions concerning the rule of law was one which drew submissions from the interveners. Given the answers to questions (bb) and (bc), it is not necessary to answer it.
Question (d)
The defendant should pay the plaintiff's costs.
Orders
The questions set out above should be answered as follows:
Question (a) - Yes.
Question (b) - Yes.
Question (ba) - Yes.
Question (bb) - Yes.
Question (bc) - No.
Question (c) - Unnecessary to answer.
Question (d) - The defendant.