HIS HONOUR: By an amended summons filed in court this day, the plaintiff, AA, seeks orders that:
1. the second defendant's decision refusing to release the plaintiff on parole made on 25 June 2020 be set aside; and
2. the plaintiff's application for release on parole under s 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) be remitted to the State Parole Authority ("the Authority") for decision according to law.
The first defendant, in the proceedings brought by the summons, is the Commissioner of Corrective Services ("the Commissioner") and the second defendant, the Authority.
Some brief background may be given and short reasons stated in relation to the matter as the parties have brought in consent orders, which, in all the circumstances, in my view, are appropriate to be made. I note the reasons that I shall now give, in that respect, also concern the contents of Annexure A to Exhibit A in the proceedings, which connect to order 4 of the consent orders.
In giving these reasons, I have had the benefit of helpful submissions, provided in writing by counsel for the plaintiff, together with a set of particulars, provided in the Amended Response Judicial Review provided by the first defendant and the Attorney General for New South Wales.
The summons, which has been moved upon, arises as a result of the plaintiff seeking parole in exceptional and extenuating circumstances based on the threats of the COVID-19 pandemic, measures taken within the New South Wales corrections system to protect inmates and staff against transmission of the virus, and the effects on her mental health ("the application"). The application was refused by the Authority on 25 June 2020 based on submissions provided to the Authority by the first defendant but not the plaintiff.
The plaintiff was arrested on 6 June 2018 and charged with four counts of administering an intoxicating substance so as to endanger the life of her 18 month old son.
The plaintiff is currently serving a sentence of 6 years, which commenced on 6 June 2018, with a non-parole period of 3 years expiring on 3 June 2021. In her application to the Authority, the plaintiff asked to see any submission from the Commissioner under s 160AA of the Crimes (Administration of Sentences) Act, and be provided with an opportunity to respond to it.
On or about 9 June 2020, the Authority sought submissions on the application from the Commissioner. On 15 June 2020, the Commissioner signed a covering submission to the Authority and provided the submission to the Authority. The Commissioner's submission and annexures were adverse to the application and likely to affect the Authority's decision.
As mentioned, on 25 June 2020, the Authority proceeded to consider the application and the Commissioner's submission and determined to reject the application. On 29 June 2020, the Authority informed the plaintiff, by email to her solicitor, that it had declined to release the plaintiff. The Authority provided a copy of the Commissioner's decision, for the first time, on 29 June 2020 together with the Authority's decision declining the release of the plaintiff.
Upon receipt of the decision, the solicitor for the plaintiff observed that there were, at least, two elements of the decision given by the Authority, which would have attracted attention by way of submissions for the plaintiff. The first reason given was that no COVID-19 events had occurred within the relevant correctional facilities, at the time of the decision. The second of those considerations was that the Authority had been informed, by Corrective Services NSW, that robust pandemic protocols had been executed in conjunction with Justice Health.
The written submissions, filed on behalf of the plaintiff in these proceedings by her counsel, Mr Simon Beckett and Ms Kathleen Heath, allude to the relevant legal principles underpinning the application, at least, so far as s 69 of the Supreme Court Act 1970 (NSW) is concerned. They appear to me to be uncontroversial and may be accepted for the purposes of this determination.
Before coming to those principles, however, I should note a further important consideration. On the evening of 21 October 2020, legal representatives for the Commissioner and the Attorney General of New South Wales served on the plaintiff's solicitor, an Amended Response to the summons, which admitted the plaintiff had been denied procedural fairness and that the first and third defendants submitted to the Court granting the relief sought in prayers 2 and 5 of the summons, being that the summons be set aside and be reverted to the Authority for decision at law. The concession has, ultimately, resulted in, firstly, the position reached between the parties today and, secondly, the saving of a considerable amount of court time and costs in lieu thereof.
Returning to the relevant principles, the plaintiff relied upon the uncontroversial proposition that the Authority was required to afford natural justice to the plaintiff in considering her application for release to parole. Reliance was placed, in that respect, on Annetts v McCann (1990) 170 CLR 596 at 598 and Esho v Parole Board Authority of NSW [2006] NSWSC 304 at [29] and [30] (per Rothman J).
So far as the parties were concerned, the core aspect of the procedural fairness issue arising in this case is that of providing an opportunity for that person, affected by a decision, to be heard with respect to any matter which is adverse to her case and likely to affect the decision. That issue, and the application of the relevant legal principles, in my view, is amply set out in the Amended Response Judicial Review, to which I have earlier referred, and which was brought to my attention today by the counsel for the defendants.
It is to Mr Emmett SC and Ms McEwen, the first defendants and Attorney-General's counsel, that I address my earlier remarks in relation to the concession. The particulars identify, in my view, the essential basis upon which the orders, which had been sought, may be granted as follows:
1. the plaintiff specifically sought an opportunity to consider and respond in material provided to the Authority on behalf of the first defendant;
2. submissions, on behalf of the first defendant dated 15 June 2020, and supporting material were filed with the Authority in relation to the plaintiff's application;
3. although it was not obliged to do so, the Authority considered and determined the plaintiff's application on 25 June 2020, as I have noted;
4. in considering the application, the Authority took into account the material filed on behalf of the first defendant; and
5. the Authority did not give the plaintiff the opportunity to respond to that material prior to determining the plaintiff's application.
Those considerations, combined with one further aspect, provide ample basis for the granting of the relief sought in consent orders. That further basis is that the denial of natural justice, in this case, was not merely theoretical. Further advice was received (from the Kirby Institute), which is referred to in the affidavit of Ms Caitlin Akthar of 3 August 2020, which indicated that evidence was available as to the failure to test existing inmates, those received into custody prior to 1 May 2020, meant that there was a substantial gap in potential protections, enhancing the risk of COVID-19 within the gaols and spreading within them. This conclusion has ever greater force when regard is had to the agreed statement of facts provided in Ex 1 in the proceedings today. In all the circumstances, the Court makes the orders provided in the consent order filed in court today in their terms.
[3]
Amendments
24 November 2020 - Reference to the plaintiff was removed and replaced with pseudonym to prevent identification of the victim of the offences
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Decision last updated: 24 November 2020