Holschier v State Parole Authority

Supreme Court of NSW|2009-08-20|Before: Hulme J

CITATION : Holschier v State Parole Authority [2009] NSWSC 916

CATCHWORDS : ADMINISTRATIVE LAW - judicial review - error of law on face of record - jurisdictional error - decision of State Parole Authority - determination not to rescind order revoking parole - reasonableness of decision - onus of proof - not accepting evidence despite finding not untruthful - whether witnesses had interest in outcome of proceedings - assessment of voice identification evidence

Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED : Supreme Court Act 1970 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995

Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270 Attorney General for New South Wales v New South Wales State Parole Authority & Hall [2006] NSWSC 865 DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Esho v Parole Board Authority of NSW [2006] NSWSC 304 CASES CITED : Hall v NSW State Parole Authority & Anor [2006] NSWSC 1411 Murray v NSW State Parole Authority [2008] NSWSC 962 Regina v Adler (2000) 52 NSWLR 451 Regina v Korgbara (2007) 71 NSWLR 187 Robinson v The Queen (1991) 180 CLR 531

John Raymond Holschier (Plaintiff) PARTIES : State Parole Authority (First Defendant) Attorney General for NSW (Second Defendant)

COUNSEL : Mr A Haesler SC (Plaintiff) Mr C Lonergan (Second Defendant)

SOLICITORS : Legal Aid NSW Crown Solicitor's Office

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

2009/30060 John Raymond HOLSCHIER v State Parole Authority and Attorney General for New South Wales

JUDGMENT 1 HIS HONOUR: On 30 March 2009 State Parole Authority ("the Parole Authority") declined to rescind a revocation of the plaintiff's parole. The plaintiff seeks a declaration to the effect that errors of law attended that decision. The basis for the decision was that the Parole Authority was satisfied that the plaintiff had committed a breach of a condition of his parole. The consequential relief sought is that the matter be remitted for rehearing according to law.

2 The Parole Authority has filed a submitting appearance. The second defendant, the Attorney General for New South Wales, has taken the active role in opposing the relief sought.

Statutory regime for parole and revocation of parole

3 Part 6 of the Crimes (Administration of Sentences) Act 1999 (the Act) provides for the granting of parole to offenders who are subject to sentences of imprisonment, whether by way of full-time, periodic or home detention, for which a non-parole period has been specified. An offender is eligible for release on parole when the non-parole period has been served (s 126). An offender who is so eligible may not be released unless a parole order has been made (s 127). A parole order is subject to conditions specified by the Act, the regulations or the sentencing court as well as by the Parole Authority (s 128 - s 128B). For offenders subject to sentences that exceed 3 years, or for those who are classified as "serious offenders" (as the plaintiff is) it is a matter for the Parole Authority whether or not to make a parole order upon the expiration of the non-parole period (Part 6 Division 2). A decision to make a parole order must not be made unless the Parole Authority is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest (s 135(1)). If a parole order is not made, the offender can apply to be released on parole on the anniversary of the parole eligibility date (s 137A and s 143A).

4 Part 7 of the Act provides for the revocation and reinstatement of various kinds of orders and Division 3 is concerned with parole orders. If the Parole Authority has reason to suspect that an offender has failed to comply with his or her obligations under a parole order it may conduct an inquiry into the matter (s 169) and may make a revocation order, inter alia, if it is satisfied of such failure to comply with obligations (s 170). A warrant may be issued committing the offender to a correctional centre to serve the remainder of the sentence (s 181). Division 4 deals with post-revocation procedures and rights of appeal. The offender must be served with a revocation notice (s 173). That notice must contain certain information, including a date on which the Parole Authority is to meet for the purpose of reconsidering the revocation (s 173(2)). It must also require the offender to notify the Secretary of the Parole Authority if the offender intends to make submissions in relation to the reconsideration (s 173(2)(c)). If such notice is given the Parole Authority must convene a meeting to conduct a hearing for the purpose of reconsidering the revocation (s 174). After considering all reports, documents and other information placed before it, the Parole Authority must decide whether or not to rescind the revocation (s 175).

5 Division 5 of Part 7 includes a provision for the offender to apply to the Supreme Court for a direction to be given to the Parole Authority in relation to a revocation of, inter alia, a parole order if the revocation has been based upon false, misleading or irrelevant information (s 176). The Supreme Court is not given jurisdiction under s 176 to consider the merits of the Parole Authority's decision otherwise (s 176(4)).

6 Part 8 provides for the constitution and functions of the Parole Authority, its powers in relation to inquiries conducted by it and other miscellaneous matters. It includes that a decision of the Parole Authority under Parts 6 and 7 is, subject to the Act, final (s 193C(4)). Schedule 1 of the Act has effect in relation to the constitution and procedure of the Parole Authority (s 183(4)). It includes that it is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate (Cl 11(3)). Proceedings are not to be conducted in an adversarial manner and are to be conducted with as little formality and technicality, and with as much expedition as fairness to any affected person and the requirements of the Act permit (Cl 11(4)).

7 Notwithstanding the provision in s 193C(4) that, subject to the Act, a decision of the Parole Authority under Parts 6 is 7 is final, it was submitted on behalf of the plaintiff that this Court has jurisdiction to consider an application for prerogative relief pursuant to s 69 of the Supreme Court Act 1970.

8 The availability of prerogative relief in proceedings of this type has been accepted: see, for example, Rothman J in Esho v Parole Board Authority of NSW [2006] NSWSC 304 and in Murray v NSW State Parole Authority [2008] NSWSC 962; Harrison J in Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270; Johnson J in DCU v State Parole Authority of New South Wales [2006] NSWSC 526; McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority & Hall [2006] NSWSC 865; and Hall J in Hall v. NSW State Parole Authority & Anor [2006] NSWSC 1411.

9 The Attorney General accepted that such relief is available, although in one respect it was contended that the plaintiff was, in reality, seeking to have the evidence before the Parole Authority reviewed on the merits. I confess to having had some initial concern that this was what the plaintiff was seeking to pursue. However, Mr Haesler SC has persuaded me that each of his contentions can be characterised as asserting error of law on the face of the record and/or jurisdictional error, so grounding the relief of the nature sought.

10 On 14 August 1991 the plaintiff was sentenced to imprisonment for life following a conviction for murder. On 14 December 1998, pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 that sentence was re-determined to imprisonment for 25 years with a non-parole period of 17 years. The non-parole period expired on 24 September 2006. On 20 November 2008 the Parole Authority made an order for the plaintiff's release on parole to take place not earlier than the 4 December 2008. The plaintiff was so released on that date.

11 The plaintiff's release to parole had been delayed for over two years because of concerns about where he would live, his relationship with children and how he would relate to living in the community. The concern about children arose because as well as the murder, the victim of which was his then defacto wife, the plaintiff had also been convicted of inflicting grievous bodily harm upon his young child. When parole was granted, a specific condition of his parole related to the need to protect children with whom he might come in contact. That was condition 20: The offender must continue to participate in the risk of harm process overseen by DOCS and comply with any reasonable directions issued by his supervising officer relevant to the risk of harm process management as agreed with DOCS.

12 It was this condition which was allegedly breached and led to the plaintiff's parole being revoked.

13 The plaintiff went to live in Deniliquin after his release with his aunt, Ms Lorraine Taylor. His wife, Ms Christine Keefe, who he had married while in custody, had returned to live in Deniliquin at about the same time, after a period of living in Sydney with another man. Living with her were her children from other relationships. The plaintiff's children by Ms Keefe (conceived although he was in custody) also lived in Deniliquin but with his mother, Ms Moore. It seems they had been placed in Ms Moore's care when Ms Keefe moved to Sydney.

14 The Probation and Parole Service as well as the Department of Community Services ("DOCS") were concerned about the safety of Ms Keefe's children. At case conferences it was made clear to the plaintiff that he must not be with Ms Keefe whilst any of her younger children from the other relationships were present. The plaintiff acknowledged an understanding of this condition. Both he and Ms Keefe had also agreed to being subject to spot checks by officers of DOCS, police and the Probation and Parole Service.

15 DOCS were represented by Ms Veronica Luxford, Manager Case Work, Child Protection Unit, Deniliquin Community Services Centre in its dealings with the plaintiff. It is apparent that the two clashed during case conferences. She regarded the plaintiff's behaviour as intimidating. Mr Ray Kirby, the plaintiff's parole officer, took a different view of this. He disagreed with Ms Luxford's description of the plaintiff acting in an intimidating fashion but rather described the plaintiff as being a person who expressed himself forcefully and in a very challenging manner. The disagreement may have had something to do with the fact that he regarded intimidation as "a threat or a perceived threat", whereas Ms Luxford spoke of the plaintiff speaking in an "aggressive tone".

16 Up until 20 January 2009 the plaintiff was regarded as having complied with all of the conditions of his parole. On that day Ms Luxford attended the home of Ms Keefe at around 10.10am. She was invited into the home by Ms Keefe. The purpose of the visit was to collect some forms in relation to childcare. (DOCS were endeavouring to assist the plaintiff and Ms Keefe in being able to spend time together by placing the children at a childcare facility). Ms Luxford noted that three of Ms Keefe's children were present including one who was estimated to be under four years of age. Ms Luxford left the premises at about 10.20am and attended the childcare centre at 10.25am. She then realised that she was in possession of documents that should remain with Ms Keefe so she returned to Ms Keefe's home at about 10.30am. She went to the front door and went to knock. She said she could hear raised voices inside. She gave this evidence before the Parole Authority as to what occurred: Q. (Were) you right at the front door or were you a few metres back from the door? Where exactly were you in relation to this - A. No, I'd walked up to the door. I had gone to knock on the door and I noticed adult shoes at the front door and I was just looking at them so I was within half an arm's distance to the front door. The front door was glass, it had three panels which should have been glass. One of those glass panels was actually cardboard and the voices - when I was looking at the shoes I heard the voices inside the house and the voices actually moved closer to the door while I was listening.

Q. It's true to say that you made no visual identification of any persons at the address at that time? A. No, no. I didn't see anybody.

Q. I'll put this to you. Mr Holschier's evidence today will be that he was not present at that address at any time on 20 January? A. Mm

Q. There will also be evidence given today from another member of his family placing him somewhere totally different - - A. M'mm

Q. - - to Ms Keefe's address at that time. In your opinion is it at all possible that there could have been another person arguing with Ms Keefe at that time? A. No. I paused at the door for what felt like a very long time. It was probably a matter of minutes but I had had several meetings with Mr Holschier where he had used exactly the same tone of voice that was being used inside that doorway. I could hear Ms Keefe's voice who I'd also had several meetings with. She was talking in a lot lower tone of voice. She was obviously trying to placate him and his voice was becoming more raised as the argument developed. They moved, my guess is knowing the house as I'd only been in it 10 minutes before they'd been in the dining room which was a little bit to the right of the front door. They had moved from the dining room to directly inside the front door. Once I had identified the voices I then considered what the best course of action was. Whether I should knock on the door, make my presence known. While I was considering what my options were I had cause to continue to hear the voices. There was absolutely no doubt in my mind that it was John Holschier.

I left the side of the house, went back to the car and I told my case worker, quick get the police on the phone, John Holschier's inside the house and the children are present. And that was what I did. I parked the car so I could see both angles of the home.

17 Ms Luxford said that she did not pay attention to the words that were being spoken between the two people in the house but was concentrating on the tone of voice and the identity of the speakers. A little later she gave this evidence: Q. Did you wait for the police to arrive? A. Absolutely.

Q. And what - A. I parked the car so I could observe the front and the side of the house. I was unable to observe one side and the back of the house and -

Q. What time do you say the police arrived at the residence? A. The police were actually dealing with a matter that had occurred simultaneously in the next street over. I waited in that position observing the house for 15 minutes. I then saw the police car drive past on the corner of the street behind the house. I then left the house where the police car was parked and I spoke to the police there at that address behind the house.

Q. While you were waiting at the address you didn't see anyone come or go from that address. Is that correct? A. No. I saw lots of further movement, I saw lots of people observing us through the windows but I didn't see anyone come or go but I only had view of the front and the side of the house, I didn't have view of the back of the house or the other side.

Q. You were aware that the police did not find Mr Holschier or any evidence of Mr Holschier at the address when they searched the premises? A. That was, to the best of my knowledge that was some considerable time not only after I'd listened to the voices but it was also some considerable time since I'd actually left my observation point that the police were able to attend. There was only one unit on in Deniliquin that day and they were dealing with a break and enter in another street and they were unable to attend when I requested.

18 There was evidence that police attended Ms Keefe's home at about 11am. They did not see the plaintiff at the premises. They spoke to Ms Keefe who said that the plaintiff had not been inside her home and nor had she spoken to him. She said that she had not been arguing with the plaintiff but rather had been arguing with her son. She told the police the argument related to him going fishing the previous day. Police noticed children inside the house. Having satisfied themselves that the plaintiff was not there they left.

19 The plaintiff gave evidence which was to the effect that he was not at Ms Keefe's home at all on the 20 January 2009. He gave an account of his whereabouts that was to the effect that he was elsewhere in the company of his aunt. The aunt, Ms Taylor, gave evidence, although because of a recording malfunction no transcript is available. It is common ground, however, that she gave evidence that was consistent with that given by the plaintiff. Ms Keefe gave evidence that the plaintiff was not at her home on 20 January 2009. She accepted that she did receive a visit from Ms Luxford that morning at around 10.20am. The next event of which she was aware was the police attending at about 11am. She was asked about Ms Luxford's evidence of having heard raised voices when Ms Luxford attended on the second occasion that morning and she said this as to the persons Ms Luxford may have overheard: Q. To your understanding who did those voices belong to? A. It could only belong to myself raised voices I was reprimanding my twelve year old son for disrespect and the only, he was - he did not have his voice raised, the only voice raised would have been myself.

Q. Was he saying anything back to you at the time? A. No. No, I was reprimanding him, I was doing the talking.

Q. He didn't say a word to you? A. Other than acknowledgement, yes, mum.

Q. How old is your son? A. He's twelve.

20 Ms Luxford provided a written report to Mr Kirby on 20 January 2009. He in turn prepared a "Breach of Parole Report" in which he recommended that the plaintiff's parole be revoked. On the 22 January 2009 the Parole Authority revoked the parole.

21 On the 6 March 2009 the Parole Authority reconvened in order to reconsider the revocation of parole pursuant to s174 of the Act. After the taking of some evidence that day the proceedings were stood over to the 30 March 2009 when the balance of the evidence was received and the Chairman delivered the decision. He said in part: Essentially the one critical issue is "was Mr Holschier present on the occasion?" Did Ms Luxford actually hear him there; was she correct in her memory? If he was there, it is not disputed that there were children there at the time that his visit was alleged to have taken place. Accordingly the only critical issue is was he there?

Now the Authority has heard all the evidence. I think it can be said about all the evidence that if they had been heard in isolation one could not point in any way to the manner in which they gave their evidence to suggest that they were not giving their evidence to the best of their recollection.

The critical issue is was Ms Luxford mistaken when she said she had heard Mr Holschier at the premises?

22 The Chairman referred to the evidence given by the plaintiff, Ms Keefe and Ms Taylor before he continued: I can only say and I think we all agree that Ms Taylor and Ms Keefe if one listened to their evidence in isolation would accept it.

What the Authority has had to do is balance the evidence of Mr Holschier, Ms Taylor and Ms Keefe against the evidence given by Ms Luxford because that is the only evidence which relates to the breach of parole and the Authority believes that Ms Luxford's evidence weighs more heavily on the balance of probability than do the other three and this is not to suggest for a moment that any of those other witnesses are being untruthful but on the balance of probabilities the Authority believes that Ms Luxford's evidence was clear, it was direct. She is an independent witness to the extent that she has no interest in the outcome of these proceedings. She could not have been more convinced in her belief that the voice she heard was that of Mr Holschier and that though she had only heard it on two occasions previously on each of those occasions it was for a sufficient length of time for her to be fully capable of identifying the tone and that his voice was that of Mr Holschier and on balance the Authority is of the view that the breach is established, that the revocation order of 22 January 2009 is to stand for the reasons stated and to be considered at the due date.

23 The grounds upon which the plaintiff claims relief are that the Parole Authority erred in law: 1. By identifying the wrong issues to be determined and applying the wrong legal tests to them, as evidenced by their: (a) Finding that Ms Luxford was an independent witness who did not have an interest in the outcome of the proceedings. (b) Finding that the Plaintiff, Ms Taylor and Ms Keefe had an interest in the proceedings and that that interest diminished the impact of their testimony. (c) Failing to exercise any "special need for caution" when evaluating Ms Luxford's voice identification evidence. 2. Failing to have regard to relevant material when assessing the evidence. 3. In its application of the balance of probabilities test by not placing an onus on those who asserted breach of parole had occurred. 4. Failing to exercise its power reasonably when determining not to rescind the revocation of the Plaintiff's parole order.

24 It is accepted on behalf of the plaintiff that these proceedings do not constitute a review of the merits and no issue was taken with the primary facts determined by the Parole Authority. Issue was taken, however, with the manner in which the Parole Authority directed itself as to the law and applied the law to the facts as found. It was submitted "the question the Parole Authority had to ask was whether on the balance of probabilities a breach of parole had been established. In asking that question (it) erred in law by identifying the wrong issues and applying the wrong test to those issues".

Reference to Ms Luxford as "an independent witness"

25 The first of the asserted specific "errors of approach" which it was said evidenced the identifying of wrong issues and applying the wrong test to those issues was the finding that Ms Luxford was an independent witness who did not have an interest in the outcome of the proceedings. It was submitted on behalf of the plaintiff that Ms Luxford was not an independent witness and that she did have an interest in the outcome of the proceedings. A "subsidiary error" was said to be that the Parole Authority ignored relevant evidence, being an email that Ms Luxford had sent to the Parole Authority and the evidence of the plaintiff's Probation and Parole Officer, Mr Kirby.

26 Ms Luxford's explanation for the concern of her department in relation to the plaintiff being in contact with children was that he had been convicted of the murder of his defacto wife and the infliction of grievous bodily harm upon his young baby in 1990. He had claimed in his defence that he suffered from a frontal lobe injury that caused him to have limited control over his violence. As a consequence there were "serious concerns" for Ms Keefe's children if he failed to abide by his parole conditions.

27 It was submitted that it was clear from her evidence that in her professional capacity she was very concerned about the plaintiff and his desire to live in the Deniliquin area. She was concerned because she understood parole to have been granted upon an understanding that the plaintiff's children to Ms Keefe would remain in the care of his mother, whereas she had subsequently learnt of conversations between the plaintiff and Ms Keefe prior to his release in which there was discussion of plans to have those children come and live at Ms Keefe's home and for the plaintiff to live there as well. The relationship between the two had terminated four years earlier and she went to live with another man in Sydney but Ms Keefe left that man and moved with her children back to Deniliquin so as to resume the relationship with the plaintiff. These proposals had not been disclosed prior to the parole decision being made. Ms Luxford was concerned that Ms Keefe moving back to Deniliquin from Sydney had been portrayed as something that was merely coincidental with the parole of the plaintiff and his taking up residence in that town. These were matters Ms Luxford set out in her email to the Parole Authority and which she substantially confirmed in the course of her evidence.

28 Reference was also made to evidence of clashes between Ms Luxford and the plaintiff at case conference meetings and her evidence of feeling intimidated by him. As I have indicated earlier, Mr Kirby took a somewhat different view of the plaintiff's behaviour at these meetings.

29 Accordingly it was submitted that Ms Luxford was not an unbiased or independent witness. It was argued that if the plaintiff was returned to custody that would remove any prospect of him being a risk to Ms Keefe's children. If that was to occur Ms Luxford would not have to deal with him and thus a potential problem in her jurisdiction would be removed, so it was submitted. In this way it was contended that Ms Luxford did have an interest in the outcome of the proceedings and so was not an independent witness.

30 On behalf of the Attorney General it was submitted that Ms Luxford was simply carrying out her duties on behalf of her department. She had a duty to report what she perceived at Ms Keefe's house on 20 January 2009. It was pointed out that what Ms Luxford had an interest in on that particular day was whether or not the plaintiff was present at the address with Ms Keefe and children at the time of her visit. Accordingly it was submitted that it was not inappropriate for the Chairperson to make the observation that Ms Luxford was an independent witness.

31 There was no suggestion in the course of cross-examination of Ms Luxford by the plaintiff's solicitor that she was biased or otherwise influenced to give evidence against the interests of the plaintiff that was untruthful. Nor was it suggested that any opinion she may have held about the plaintiff and the circumstances in which he had been released on parole had any influence upon her forming the opinion that it was his voice that she heard at Ms Keefe's home on 20 January 2009. I have, nevertheless, examined her evidence with a view to seeing whether there is any basis to conclude that she was not "independent", which I take to mean that she had a personal interest or concern in the outcome of the proceedings. I can detect none. The matters referred to in the plaintiff's submissions appear to be Ms Luxford's reporting of the facts as she perceived them to be. In my view it was open to the Chairman to say what he did about Ms Luxford as a witness. There was no error in this respect.

Whether the plaintiff and his witnesses were not "independent" witnesses

32 The second of the specific "errors of approach" was said to be the corollary of the first and that is that the plaintiff, Ms Taylor and Ms Keefe did have an interest in the proceedings which diminished the impact of their evidence. An analogy was drawn between the proceedings before the Parole Authority and criminal proceedings, in the latter of which it has been held that telling a jury that the accused has the greatest interest of all of the witnesses in the outcome of the proceedings and that therefore his/her evidence should be scrutinized closely is a misdirection: Robinson v The Queen (1991) 180 CLR 531. The plaintiff acknowledged the differences between formal criminal proceedings and the lesser formality, and lower standard of proof attending proceedings before the Parole Authority. Nevertheless, given what was at stake for an offender, in this case a return to custody until the expiration of his sentence in 2014, subject to annual re-consideration of parole, it was submitted that diminishing the weight to be accorded to the evidence of himself and his witnesses was to strike at the notion of a fair hearing. In the consideration of the evidence of Ms Keefe it was also submitted there was error in failing to take into account that she had made a contemporaneous statement to the police who attended her home at about 11.00am on the day in question that the plaintiff had not been at her home that day.

33 I am of the view that the Parole Authority did not err as has been claimed. The Chairman did not say that the plaintiff and his witnesses had an interest in the outcome of the proceedings, nor that because of such interest their evidence was deserving of less weight. To observe that Ms Luxford was independent does not mandate the drawing of an inference that the evidence of the plaintiff and his witnesses was of less value or warranted greater scrutiny. The plaintiff's contention is that the Chairman's remarks should be understood as a statement to the effect that the evidence of Ms Luxford was to be preferred to the plaintiff's evidence because she was independent and he and his witnesses were not. The Chairman did not say that and nor can it be inferred that this was his thinking. As for the asserted failure to take into account Ms Keefe's contemporaneous statement to the police, I accept that there is no mention of it in the Chairman's reasons. However, I do not accept that this is a reliable basis to conclude that it was not taken into account. It was not encumbent upon the Chairman to refer to every aspect of the evidence. The statement by Ms Keefe was, in the context of the evidence overall, a relatively minor aspect.

Effect of statement that plaintiff's witnesses were not "untruthful"

34 It is appropriate to mention at this point another "subsidiary error" alleged by the plaintiff. It was that the finding that a breach of parole had been established ignored a contradictory finding that the plaintiff and his witnesses had not been "untruthful". I have earlier set out the passage of the reasons delivered by the Chairman in which this appears (at [22]). The Chairman found that "Ms Luxford's evidence weighs more heavily on the balance of probability than do the other three". The Chairman was obviously aware that the onus of proof was to the civil standard and not proof beyond reasonable doubt. It is not uncommon that a finding will be made that the evidence of a witness, or witnesses, is more reliable and to be preferred to that of opposing witnesses when applying the civil standard. It was not necessary for the Chairman to find that the plaintiff, Ms Keefe and Ms Taylor were untruthful before determining to prefer and act upon the evidence of Ms Luxford. I see nothing "contradictory" in the Chairman's reasoning in this respect.

35 The third "specific error" was that the Parole Authority failed to exercise any "special need for caution" when evaluating Ms Luxford's voice identification evidence. Reference was made to s 116 and s 165 of the Evidence Act 1995 and also to Regina v Adler (2000) 52 NSWLR 451 at [13] - [14] and Regina v Korgbara (2007) 71 NSWLR 187 at [59]. Whilst acknowledging that the Evidence Act did not apply in the proceedings before the Parole Authority it was submitted that the general principle that underpins s116 and s165 remains sound and was required to be applied as a matter of law as a guide when assessing and evaluating the voice identification evidence. Thus it was submitted that the authority does not appear to have taken this "special need for caution" into account when evaluating Ms Luxford's evidence. It was asserted that the finding that her evidence was given with "conviction" only meant that her conviction was strongly held but not that her opinion was correct.

36 In response it was submitted on behalf of the Attorney General that all that the Parole Authority did, as was required, was to carefully consider the evidence when assessing Ms Luxford. In so obviously carefully considering that evidence the Parole Authority was doing what the plaintiff contended it should, that is "exercise a special need for caution". It was submitted that it was clear from her evidence how it was that she stated that she was able to identify the plaintiff's voice, namely that she had been with him very recently and was able to recognise/identify not only his voice but the tone of his voice.

37 In my view, this was not a case calling for the assessment of voice identification evidence in a manner the criminal law has identified requires caution. Upon the evidence before the Parole Authority there were really only two possibilities. One was that which Ms Luxford described. The other was that what she heard was Ms Keefe having a conversation with her 12 year old son in which she was the dominant speaker, speaking at a greater volume than her son, with her son making very little contribution to the conversation. In other words, Ms Luxford heard the raised voice of Ms Keefe and mistakenly thought it was the raised voice of the plaintiff and the second voice she heard was not Ms Keefe "talking in a very quiet tone" but was a twelve year old boy whose only contribution to the conversation was "Yes mum". Theoretically there is a third possibility and that is that Ms Luxford did not hear anything at all but for some reason was claiming that she did. That, however, is rather fanciful and was not something that was suggested to her. Faced with this choice between the two possibilities I have mentioned, it was well open to the Parole Authority to come to the view that Ms Luxford was not mistaken and that her evidence should be accepted. It did not require the Authority to assess such evidence with any "special need for caution" that would normally apply to voice identification evidence. There was no error in not explicitly stating that Ms Luxford's evidence was not assessed with such caution but, in any event, it was clear that the Parole Authority did realise the importance of the evidence and did assess it carefully.

38 My conclusion is that the Parole Authority did not "identify the wrong issues to be determined" or "applied the wrong legal tests to them". It did not "fail to have regard to relevant material when assessing the evidence". Ground 3 is that there was error of law "in its application of the balance of probabilities test by not placing an onus on those who asserted breach of parole had occurred". There is no merit in this. There is explicit reference by the Chairman to being satisfied to that standard of proof of the evidence relied upon to establish the breach. Ground 4 asserts a failure of the Parole Authority to "exercise its power reasonably". Given my finding that there was no error in the approach taken by the Chairman I can see no other basis for concluding that there was any unreasonableness in the exercise of the authority's power.

39 I make the following orders: 1. The amended summons filed on 17 August 2009 is dismissed **********

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Cases Cited (9)