Court of Appeal (WA)|2011-07-08|Before: Martin CJ

1 The applicant, Lennard Mark Kirby, seeks orders quashing a decision of the Prisoners Review Board (the Board) made on 25 May 2009 suspending a parole order which had taken effect on 6 December 2008, and further seeks orders quashing a decision of the Board made on 17 December 2009 cancelling that parole order, together with associated relief. Appropriately, the Board has filed a submitting appearance and taken no part in these proceedings other than to provide relevant documents to the court, and some evidence. The Attorney General of Western Australia has intervened to act as a contradictor and to provide the court with submissions on issues of public importance.

2 For the reasons which follow, although Mr Kirby has established that the Board breached statutory obligations by: (a) failing to provide him with notice of, and a statement of reasons for, its decision to suspend his parole as soon as practicable; (b) failing to provide him with a proper statement of the reasons for its decision to suspend his parole and for one aspect of its decision to cancel his parole, and (c) adopting an inflexible policy with respect to the provision of an opportunity for a prisoner to appear before the Board, Mr Kirby has failed to establish that the decisions of the Board to suspend and later to cancel his parole were invalid, or that either decision should be set aside by the court. The court should provide an opportunity to Mr Kirby and the intervenor to present submissions as to the precise terms of the relief appropriately granted to give effect to these conclusions.

3 The facts relevant to the relief sought by Mr Kirby were not in contention. They were established by affidavits and documentary evidence tendered without objection.

4 Mr Kirby is 50 years of age. He has an extensive criminal record. His most recent convictions prior to the events giving rise to these proceedings took place in October and November 2002. On 4 October 2002, he was convicted of possessing amphetamine with intent to sell or supply, possessing cocaine with intent to sell or supply, three counts of possessing an unlicensed firearm and two counts of possessing ammunition without a licence. He was sentenced to a total of 9 years imprisonment on those charges. The term of imprisonment was backdated to commence on 7 December 2001. On 22 November 2002, Mr Kirby was convicted of a further count of possessing amphetamine with intent to sell or supply, for which he was sentenced to a term of 4 years and 6 months cumulative upon the term he was then serving. He was also declared to be a drug trafficker. Orders for eligibility for parole were made in respect of each of the sentences imposed on 4 October and 22 November 2002.

5 Accordingly, as a result of the convictions to which I have referred, Mr Kirby was sentenced to a total of 13 years and 6 months imprisonment with eligibility for parole. After the remission of onethird of the sentences imposed, under the sentencing regime then applicable (reducing the total term of imprisonment to a term of 9 years), Mr Kirby was eligible for parole after serving 7 years imprisonment. The Board made a parole order to take effect from the earliest date upon which Mr Kirby was eligible for parole - namely, 6 December 2008. The term of Mr Kirby's parole was a period of 2 years, with the result that if he had successfully completed his term of parole, on 6 December 2010 he would have been discharged from the sentences to which I have referred.

6 On 18 May 2009, a little over five months following his release from prison, Mr Kirby attended residential premises situated in Jandakot occupied by a Mr Zuideveld. Mr Zuideveld and others, including Mr Michael Lance Littlefair, were present. Two brothers, Steven and Khai Vo, attended the premises. There was then an altercation in the course of which Mr Kirby was shot three times. Parts of the altercation were recorded by a closed circuit television camera. Another person present, Mr Scilio, was also shot. Mr Zuideveld returned fire as each Mr Vo and their companions left the premises. Mr Kirby was taken to hospital, where his gunshot wounds were treated.

7 The Board considered Mr Kirby's case at a meeting held on 21 May 2009. It was decided to defer his case for further consideration at another meeting of the Board on 25 May 2009. A pro forma letter dated 21 May 2009 and addressed to Mr Kirby was prepared and signed on behalf of the Board. In the letter, the typescript shows Mr Kirby's address as 'Unknown Facility Unknown Address', but that portion of the letter has been overscored by manuscript and the words 'Belmont CJS' inserted, again by manuscript. The foot of the letter bears the notation 'cc: Superintendent/General Manager, Unknown Facility SIU'. The letter purported to advise Mr Kirby that the Board had decided to defer his case for further review on 25 May 2009. Curiously, the letter advised Mr Kirby that he was entitled to request review of the Board's decision. It seems likely that this portion of the pro forma letter was included by error. At all events, nothing appears to turn upon the terms of this letter, as it does not appear to have been delivered to Mr Kirby.

8 The Board gave further consideration to Mr Kirby's case at its meeting on 25 May 2009, and resolved to suspend the order which had been made granting him parole. A letter dated 25 May 2009 was prepared and signed on behalf of the Board addressed to Mr Kirby. It had the same address characteristics as the letter of 21 May 2009 - namely, typescript showing an address to 'Unknown Facility Unknown Address' and 'cc: Superintendent/General Manager Unknown Facility SIU', but with the original address overscored in manuscript with the notation 'CJS Belmont'.

9 The letter advised Mr Kirby that the Board had decided to suspend his parole order and had issued a warrant for his arrest for the reason that:

The Board is concerned for community safety in view of your current circumstances (GAB 40).

The letter makes no attempt to advise Mr Kirby of his right to seek a review of the Board's decision under s 115A of the Act, or of the effect of that section (contrary to the requirements of s 107B of the Sentence Administration Act 2003 (WA) (the Act), although that omission is not raised in any ground of review.

10 It seems from an undated letter from the Chairperson of the Board that the letter was sent by facsimile to the Belmont office of Community Justice Services at 2.00 pm on 25 May 2009. It also seems that no attempt was made to serve the letter or a copy of the letter upon Mr Kirby at the time he was arrested and taken into custody on 26 May 2009. It also seems clear that the letter was not provided to him until three weeks later, notwithstanding that he was in custody, and his whereabouts obviously known, over that period.

11 Nevertheless, it seems that information was provided to Mr Kirby, perhaps through intermediaries, as to the reasons for the suspension of his parole. That appears from a letter which his solicitors sent to the Board on the day he was arrested, namely, 26 May 2009, confirming that Mr Kirby had been told that his parole had been suspended because there 'are concerns about community safety in view of current circumstances'. The letter asserted, unsurprisingly, that the specified 'ground is very broad and gives us no particulars as to the basis of the suspension'. The letter proceeded on the assumption that the suspension related to the incident in which Mr Kirby was shot, and made representations on the basis of that assumption. The letter sought an urgent review of the suspension of Mr Kirby's parole on the grounds of lack of particularisation in relation to the ground of his suspension, the fact that he was the victim of a criminal offence and not the perpetrator, and what was asserted to be Mr Kirby's compliance with the conditions of his parole since his release from custody.

12 On 29 May 2009, there was an extensive media report relating to Mr Kirby and others, arising from the incident in Jandakot. As a result of that report, on 2 June 2009, the solicitors acting for Mr Kirby wrote again to the Board enclosing a copy of a press release that had been issued on his behalf denying the accuracy of the media report. The letter expressed concern that matters had been put to the Board which were not true, and expressed a wish that Mr Kirby would be given the opportunity to respond to any concerns which had been raised in relation to the continuation of his parole. The letter further recorded that Mr Kirby had still not received any written notice of the suspension of his parole.

13 By letter dated 3 June 2009, the Chairperson of the Board responded to the letters which had been written on Mr Kirby's behalf. In that letter it was asserted that:

In this instance, the Board made a decision based on the information before it. Whilst, under s 107B of the Act, the Board is required to give the prisoner notice in writing of any decision, and the reasons for the decision, as soon as practicable after a decision is made, the Board is not required to identify the information on which the decision is based or to particularise the reasons for its decision (GAB 38).

14 The letter went on to refer to s 119 of the Act and the prohibition upon Board members and staff making public any information in relation to a Board matter. The letter further noted that under s 107C of the Act, the Chairperson was entitled to make public a decision of the Board or the reasons for it if she considered it was in the public interest to do so. However, the letter advised:

In this case at this time I am not prepared to make public any further information than that which has already been provided (GAB 38).

15 I digress to observe that this portion of the letter is curious, as the Chairperson was responding to a request by solicitors acting on behalf of Mr Kirby for notice of the reasons for the decision that had been made to suspend his parole. He was entitled to that notice pursuant to s 107B of the Act. In that context, it is difficult to see how the provisions of the Act relating to confidentiality and making information available to the public have any relevance.

In your letter of 2 June 2009 you advise that your client would like the opportunity of responding to any concerns which have been raised in relation to the continuation of his parole. For the above reasons, I am not prepared to identify the information to which the Board was privy. Consequently, I cannot comply with your client's request. However, in relation to the allegation reported in the media concerning the decision not to remove a bullet which remains in your client's body, I am prepared to advise that this allegation played no part in the Board's decision (GAB 39).

17 I digress again to observe that despite the reference to 'the above reasons', there are in fact no reasons given in the letter for the refusal to provide Mr Kirby with the opportunity to respond to the concerns that had been raised, other than perhaps the assertion that the Board was not required to identify the information on which its decision was based (an assertion which I consider to be erroneous for reasons which will be developed).

18 The letter went on to note the request for a review of the Board's decision, and to refer the solicitors to the provisions of s 115A of the Act, and sought confirmation that the solicitors were intending to invoke the right of review conferred by that section.

19 On 9 June 2009 Mr Kirby was charged with two counts of committing an unlawful act with intent to harm by endangering life, health or safety, contrary to s 304 of the Criminal Code (WA) as a result of the events which took place at Jandakot on 18 May 2009.

20 On 17 June 2009 Mr Kirby received, for the first time, a copy of the Board's letter of 25 May 2009 giving him notice of the decision to suspend his parole for the reason which I have set out above.

21 On 18 June 2009 Mr Kirby was granted bail on the charges which he faced on condition that he remain at his home in Cloverdale. However, because of the suspension of his parole, he remained incarcerated.

22 On 25 June 2009 Mr Kirby's solicitors wrote to the Board advising that they were not in a position to proceed with the request for the review of Mr Kirby's decision because they had not been provided with the information relied upon by the Board, nor provided with any particulars of the reasons for the decision to suspend parole, and because they had not been served with the prosecution brief in relation to the charges which Mr Kirby faced. The letter complained of the delay in the provision of the written notice to Mr Kirby of the decision to suspend his parole.

23 The Chairperson responded to that complaint by the undated letter to which I have already referred, setting out what had occurred in relation to the notice of suspension of Mr Kirby's parole. Notwithstanding that those circumstances revealed that, despite the statutory obligation to serve written notice 'as soon as practicable' after the Board's decision, written notice was not served upon Mr Kirby until three weeks after he was taken into custody, the Chairperson asserted in her letter that she considered that the steps taken in relation to service of the notice 'were appropriate and reasonable in the circumstances'.

24 By letter dated 2 September 2009 Mr Kirby's solicitors sought a review of the Board's decision to suspend Mr Kirby's parole pursuant to s 115A of the Act. The letter again complained of the Board's failure to provide the information relied upon by the Board at the time of its decision, or to provide any particulars of the Board's conclusion that it held 'concerns for community safety' or the 'current circumstances' that were relied upon to justify those concerns.

25 The letter enclosed the prosecution brief which had been served upon Mr Kirby in respect of the charges which he faced. The letter went on to advance a number of submissions based upon alternative hypotheses as to the reasons for the Board's decision to suspend parole. This course was necessitated by the Board's refusal to provide any meaningful statement of the reasons why Mr Kirby's parole had been suspended. The letter referred specifically to the difficulty of specifying the grounds upon which review was sought in the absence of any meaningful statement of the reasons why Mr Kirby's parole had been suspended.

26 By letter dated 17 September 2009 the Acting Executive Manager of the Board advised Mr Kirby's solicitors that the Chairperson would conduct the review that had been requested in due course, and that they would be advised of the outcome.

27 Curiously, by letter dated 29 September 2009 from the Registrar of the Board, Mr Kirby's solicitors were advised that because their request for review had raised a question of law, it would have to be dealt with by the Chairperson, who would not return from leave 'until 12 September 2009'. Of course that date was some weeks earlier. Perhaps the reference to '12 September 2009' should have been a reference to 12 October 2009, although there is no evidence to explain this apparent anomaly. At all events, the review was not conducted in either October or November 2009.

28 On 20 November 2009 Mr Kirby was advised that the Director of Public Prosecutions did not propose to proceed with the indictment in relation to the two charges which had been brought against him, which would be discontinued, and instead a new summons alleging common assault would be brought before the Magistrates Court. By letter dated 23 November 2009 Mr Kirby's solicitors provided this information to the Board and requested that it be taken into account by the Chairperson when she conducted her review of the decision to suspend Mr Kirby's parole.

29 The indictable charges brought against Mr Kirby were discontinued, and a fresh prosecution notice brought in respect of an offence of assault. Mr Kirby's solicitors made representations to the Director of Public Prosecutions to the effect that this charge should also be withdrawn.

30 By letter dated 3 December 2009, the Chairperson of the Board wrote to Mr Kirby's solicitors advising that she had recently been advised in relation to another prisoner on parole who was involved in the same incident (presumably Mr Littlefair) that the prosecution had offered to withdraw the charge of common assault in that case in recognition of time spent in custody. The letter went on to advise that although there was no information to the effect that the prosecution would take a similar course in Mr Kirby's case, the Chairperson had decided that it would be in the interests of justice if, instead of conducting a review of the Board's decision to suspend parole, both cases were referred to the Board for further consideration pursuant to s 115A(8)(c) of the Act.

31 By letter dated 11 December 2009, the Office of the Director of Public Prosecutions advised Mr Kirby's solicitor that although they considered there was a reasonable prospect of conviction in respect of the charge of assault which had been brought against Mr Kirby, it was not considered to be in the public interest to continue with the prosecution because Mr Kirby had been in custody for a time commensurate with any sentence he would receive if convicted. Accordingly, the letter advised that the charge of assault brought against Mr Kirby would be discontinued upon the next occasion the matter came before the court. A copy of that letter was provided by Mr Kirby's solicitors to the Board.

32 On 17 December 2009 the Board considered Mr Kirby's case, presumably on the basis of the reference from the Chairperson of Mr Kirby's application to review the decision to suspend his parole. However, the outcome of the Board's consideration was not to affirm or set aside its previous decision to suspend Mr Kirby's parole, but rather to cancel his parole. It seems clear that no notice had been given to Mr Kirby or his solicitors to the effect that the Board would consider the cancellation of his parole.

33 A letter dated 17 December 2009 was sent by the Board to Mr Kirby addressed to the prison in which he was incarcerated. The letter advised Mr Kirby that his parole had been cancelled for the following reasons:

Your ongoing relationship with known offenders and outlaw motor cycle gang members increases your risk of reoffending and risk to the personal safety of the community.
The Board has viewed video of the incident on 18 May 2009 which demonstrates your instigation of violence (GAB 91).

The letter went on to advise Mr Kirby of his right to seek a review of the Board's decision, and of the effect of s 115A of the Act.

34 On the same day the Board prepared and executed a document entitled 'order suspending or cancelling an early release order', which recorded the cancellation of Mr Kirby's parole order. No reference is made in that document to the letter of 17 December 2009, or to any reasons for the decision to cancel Mr Kirby's parole.

35 On 4 January 2010 solicitors acting on behalf of Mr Kirby wrote to the Board requesting the reinstatement of his parole subject to conditions which would restrict Mr Kirby's association with motor cycle gang members.

36 By an undated letter (which was presumably sent sometime during January 2010), Mr Kirby wrote to the Board putting representations before the Board as to the manner in which the video of the incident at Jandakot should be construed. By a letter which is also undated but which bears a notation suggesting that it may have been sent by facsimile on 5 February 2010, the Chairperson of the Board wrote to Mr Kirby's solicitors advising that the matters that had been raised in their correspondence and in the letter from Mr Kirby did not fall within the grounds of review specified in s 115A of the Act, as a result of which the request for review was denied. The letter confirmed that in making the decision to cancel Mr Kirby's parole, the Board viewed and took into account the video of the incident which occurred at Jandakot on 18 May 2009 which was said to demonstrate Mr Kirby's instigation of violence.

37 On 3 June 2010 Mr Kirby was brought before McKechnie J in this court in order that he might be examined with respect to the evidence that he might give at the trial of others who had been charged with his attempted murder as a result of the incident at Jandakot, pursuant to s 158 and sch 3 of the Criminal Procedure Act 2004 (WA). Mr Kirby was sworn, but refused to answer any of the questions put to him. Counsel appearing on his behalf submitted that he should not be required to answer those questions because they could have a bearing upon proceedings that were contemplated against the Board. Mr Kirby said in evidence that the reason he refused to answer was because of fears which he held for his own safety, and for the safety of his family.

38 As a result of Mr Kirby's refusal to answer the questions that were put to him, McKechnie J indicated that there was a prima facie case of contempt of court, and proceeded to deal with that case. After hearing evidence and submissions, McKechnie J concluded that the reasons that had been advanced for Mr Kirby's refusal to answer the questions put to him did not provide a reasonable excuse and Mr Kirby was convicted of contempt. On 2 September 2010 Mr Kirby was sentenced to 13 months imprisonment on that charge. Because the Act does not apply to sentences imposed for contempt of court, there is no question of parole eligibility in relation to that term of imprisonment. Accordingly, whatever the outcome of these proceedings, Mr Kirby must be imprisoned under that sentence until 2 October 2011, unless the appeal which he has brought from his conviction is successful.

39 On behalf of Mr Kirby it is said that the cancellation of his parole has caused him to forfeit the remission of onethird of his sentence to which he was entitled under the previous sentencing regime: see s 69(1) of the Act, King v Piper [2004] WASCA 218; (2004) 147 A Crim R 394; Hiron v The State of Western Australia [2010] WASC 236. No contrary submission was put by the intervenor. It is further put on behalf of Mr Kirby that if the order of the Board cancelling his parole was invalid, or is quashed by the court, Mr Kirby's entitlement to parole will be reinstated, as would be his entitlement to remission of onethird of his sentence, and that because the term of his parole order has now expired, he would be taken to have completed the service of the sentences imposed upon him in 2002, with the result that he would be released from custody upon the expiry of the sentence imposed upon him for contempt of court. Because of my conclusion that the decision of the Board to cancel Mr Kirby's parole was valid, and that Mr Kirby is not entitled to an order quashing that decision, it is unnecessary to analyse or determine the correctness of these assertions. There is however good reason to doubt their validity, given that Mr Kirby committed an offence for which he was sentenced to imprisonment prior to the expiry of the term of the parole order, with the result that, even if the parole order is taken to have been in force on 3 June 2010, it would have been automatically cancelled as a consequence of his conviction for contempt pursuant to s 67 of the Act.

40 Nevertheless, the submissions put on Mr Kirby's behalf with respect to the effect of the Board's cancellation of his parole explain why the focus of the relief which he seeks is directed towards orders to the effect that the Board's decision was invalid, or quashing that decision, rather than upon other forms of relief that might arise from the circumstances which I have set out.

41 The grounds upon which relief was sought by Mr Kirby are contained in the order nisi. They are set out in 17 numbered paragraphs, some containing a number of subparagraphs. For some reason in the submissions filed in support of the grounds, they have been reordered and renumbered so as to comprise 19 distinct grounds. The arguments advanced in support of those grounds correspond with the arguments which were advanced in a matter heard simultaneously with this matter, namely Seiffert v The Prisoners Review Board [2011] WASCA 148 (CACV 138 of 2010), modified where appropriate to take into account the different circumstances of this case, including in particular the fact that in this case the grounds are directed to challenging both the decision to suspend parole, and the decision to cancel parole. Rather than deal with the specific grounds by reference to either of the numbering systems which have been used, as in Mr Seiffert's case, it is more appropriate to group and address the grounds by reference to the subjects which they address, namely:

(2) the Board's policy of not allowing prisoners to appear before it;

(3) the alleged failure of the Board to give written notice of its decision to suspend parole as soon as practicable after that decision was made, and the alleged failure of the Board to give adequate reasons for its decision to suspend parole and for its decision to cancel parole;

(4) taking irrelevant considerations into account, failing to take relevant considerations into account, and unreasonableness; and

42 These reasons will be published at the same time as my reasons in Mr Seiffert's case. Because the arguments advanced on behalf of Mr Kirby correspond in large measure with the arguments advanced on behalf of Mr Seiffert, it is unnecessary to repeat the reasoning which I have adopted in relation to those arguments in these reasons. These reasons will therefore only deal with matters which arise from the different circumstances of this case, and should be read in conjunction with my reasons in Mr Seiffert's case.

43 It is clear beyond argument that Mr Kirby was denied procedural fairness by the Board when it suspended his parole and when it cancelled his parole. Dealing firstly with the Board's decision to suspend his parole, he was not given any notice of the Board's intention to consider suspension, or of the matters which the Board proposed to take into account in that regard, nor was he given any opportunity to respond to the propositions that had been put against him, or to put any matters before the Board for its consideration. And as there was no review of the decision to suspend his parole, it could not be asserted that any such review overcame the denial of procedural fairness in connection with the decision to suspend.

44 Turning now to the decision to cancel Mr Kirby's parole, he was not given any notice of the Board's intention to consider cancellation of his parole, or of the matters which the Board proposed to take into account in that regard, nor was he given any opportunity to respond to the propositions that were put against him, nor to put any matters before the Board for its consideration. Although he exercised a right to seek a review of that decision, it could not be said that the review conducted by the Chairperson pursuant to s 115A of the Act overcame the denial of procedural fairness in connection with the cancellation decision because:

(a) the review procedure provided by s 115A is not a rehearing, but is a review on specified grounds by only the Chairperson of the Board (s 115A(6));

(b) the Chairperson did not in fact review the Board's decision to cancel parole but instead decided that the grounds upon which review had been sought did not come within the scope of the review provided by s 115A; and

(c) the inadequacy of the reasons given to Mr Kirby for the cancellation of his parole (a matter which I will address below), denied him the opportunity to bring his application for review within the grounds specified by s 115A of the Act.

45 It follows that unless s 115 of the Act has the effect that the Board was not obliged to comply with the rules of procedural fairness at the time it suspended Mr Kirby's parole, or at the time it cancelled his parole, Mr Kirby is entitled to the relief which he seeks. However, for the reasons I have expressed in Seiffert, s 115 does have the effect of excluding the obligations of procedural fairness from decisions to suspend or cancel parole, with the result that the various grounds relied upon by Mr Kirby which assert denial of procedural fairness must be dismissed.

46 Mr Kirby asserts that he is entitled to a remedy because the Board has adopted an inflexible and arbitrary rule of denying him, and all other persons whose cases are considered by the Board, of the opportunity of an oral hearing. He asserts that that rule is invalid and unlawful for the same reasons asserted by Mr Seiffert. For the reasons I have given in that case, I conclude that the Board has adopted an inflexible and arbitrary rule which fetters its discretionary power to provide an oral hearing to those effected by its decisions and has misconstrued the Act in adopting that rule. However, for the reasons I have given in Mr Seiffert's case, the assertions made with respect to the process by which the Board arrived at its no hearing rule, including the assertions that it took account of irrelevant considerations, failed to take relevant considerations into account, and acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), have no bearing upon the question of whether Mr Kirby is entitled to the remedy which he seeks as a consequence of the Board's adoption of the no hearing rule. That issue turns upon the question of whether the Board was under a duty to consider providing Mr Kirby with the opportunity of an oral hearing. That is a question of statutory construction, and for the reasons I have given in Mr Seiffert's case, I conclude that the Act properly construed does not require the Board to consider providing the opportunity of an oral hearing as a condition of the valid exercise of its powers either generally or as a consequence of the particular circumstances of an individual case.

47 However, if, contrary to my view, the Act properly construed obliges the Board to give consideration to providing the opportunity of an oral hearing if the circumstances of the case warrant such consideration, there would be much to be said for the view that Mr Kirby's circumstances warranted such consideration prior to the decision to cancel his parole. Before that decision was taken, Mr Kirby had been in custody for more than six months, following the decision to suspend his parole on 25 May 2009. As his solicitors pointed out to the Board repeatedly, the reasons given for the suspension of his parole were utterly inadequate, and provided no basis for the meaningful exercise of the right of review conferred by s 115A of the Act. The requests made by Mr Kirby's solicitors for the provision of the information needed to meaningfully exercise that right of review were repeatedly rejected by the Board. It was however clear from the correspondence provided by Mr Kirby's solicitors in support of the application for review that he vigorously disputed the proposition that any conclusions adverse to him should be drawn from his involvement in the incident at Jandakot on 18 May 2009. In those circumstances, the provision of notice to Mr Kirby that the Board was considering cancelling his parole, and of the matters it was proposing to take into account in the course of that consideration, followed by the provision of an opportunity for Mr Kirby to address the Board in relation to those matters would very likely have enhanced both the fairness and the quality of the Board's subsequent decision. However, the Board gave no notice to Mr Kirby that it was considering cancelling his parole, nor of the matters it was proposing to take into account in that regard, nor was any opportunity provided to him to respond to those matters. Accordingly, if, contrary to my view, the Act properly construed does require the Board to consider the provision of an opportunity for an oral hearing if the circumstances of the case warrant that course, this would appear to be such a case.

48 In summary, Mr Kirby, like Mr Seiffert, has established the unlawfulness and invalidity of the no hearing rule adopted by the Board, but he has failed to establish that the Board's adoption of that rule resulted in the invalidity of the decision of the Board to suspend his parole, or of the decision to cancel his parole. It follows that the only relief to which he may be entitled in respect of this aspect of his case is declaratory relief of a generic nature.

The failure of the Board to give notice in accordance with s 107B

49 In respect of each of the decisions to suspend and to cancel Mr Kirby's parole, s 107B of the Act required the Board to give to Mr Kirby written notice of its decision as soon as practicable after the decision was made, including the reasons for the decision, and informing Mr Kirby of the effect of s 115A of the Act. In respect of the decision to suspend his parole, Mr Kirby asserts that written notice of that decision was not given as soon as practicable after the decision was made, and that he was not given adequate reasons for that decision. Mr Kirby further asserts that he was not given adequate reasons for the decision to cancel his parole.

50 As I have noted, the Board decided to suspend Mr Kirby's parole on 25 May 2009. He was not provided with written notice of that decision until 17 June 2009, notwithstanding that he was arrested and taken into custody on 26 May 2009. Accordingly, for a period of about three weeks Mr Kirby's whereabouts were known to the Board, yet no step was taken by the Board to ensure that written notice of its decision, complying with s 107B of the Act was served upon him.

51 In the undated letter from the Chairperson of the Board to which I have referred, it is asserted that because a copy of a document was sent by facsimile to the Belmont office of Community Justice Services, and that because information relating to the decision was available in a database available to the prison in which Mr Kirby was housed, the steps taken by the Board to comply with its statutory obligation 'were appropriate and reasonable in the circumstances'. I disagree.

52 The obligation to give a prisoner written notice of a decision made by the Board is an obligation imposed by the Act upon the Board. It is not an obligation which is imposed upon the Department of Corrective Services or upon any custodial institution. It seems from this and the other cases heard simultaneously with this case that the Board considers that it can discharge its statutory obligation by providing copies of correspondence to the Department of Corrective Services, and leaving it to that department to discharge the obligation imposed upon the Board, without the Board taking any further step to ensure that the statutory obligation has been satisfied. It seems to me to be clear beyond argument that this procedure falls well short of discharging the obligation to give a prisoner written notice of a decision 'as soon as practicable', and equally clear that in this case the Board failed to discharge its obligation to give Mr Kirby written notice of its decision as soon as practicable after the decision was made.

53 In the reasons I have given in the Mr Seiffert's case, I have set out my conclusions with respect to the required content of a statement of reasons provided under s 107B of the Act. In short, in addition to satisfying the requirements enunciated by Wheeler J in Re Parole Board; Ex parte Forbes (1996) 89 A Crim R 139, a statement of reasons given under the current legislative regime must be adequate to enable the person affected by the decision to bring his or her request for review on one or more of the grounds specified by s 115A of the Act. Because those grounds include the ground that the Board used incorrect or irrelevant information or was not provided with relevant information, the reasons must notify the person affected by the decision of the information upon which the Board has relied for the purposes of the decision with sufficient particularity for the right of review to be exercised.

54 In the case of the decision to suspend parole, the reason given by the Board in the written notice ultimately provided to Mr Kirby was not a reason at all, but rather, a bald conclusion to the effect that the Board was 'concerned for community safety' in view of Mr Kirby's 'current circumstances'. The opacity of that statement drew entirely justified criticism from the solicitors acting on behalf of Mr Kirby, who correctly asserted that it deprived them of the capacity to exercise the right of review conferred by s 115A of the Act in any meaningful way. Their repeated requests for the information to which Mr Kirby was entitled by s 107B of the Act were denied by the Board on each occasion. There can I think be no doubt that the Board conspicuously failed to discharge the obligation to give Mr Kirby a statement of the reasons for its decision imposed by s 107B of the Act.

55 Turning now to the Board's decision to cancel Mr Kirby's parole, as I have noted, two reasons were given for that decision, namely:

(1) Your ongoing relationship with known offenders and outlaw motor cycle gang members increases your risk of reoffending and risk to the personal safety of the community.

(2) The Board has viewed video of the incident on 18 May 2009 which demonstrates your instigation of violence.

56 The first reason given has essentially two components - first, a finding of fact that Mr Kirby had an ongoing relationship with known offenders and outlaw motor cycle gang members, and secondly a conclusion that this fact increased Mr Kirby's risk of reoffending and thereby jeopardised the safety of the community.

57 No basis for the factual component of that assertion, was provided to Mr Kirby, nor any particulars given of the 'known offenders' and 'outlaw motor cycle gang members' with whom he was said to have an ongoing relationship. Because one of the grounds of review provided by s 115A of the Act focuses upon the information that was before the Board at the time of its decision, it was necessary for the Board to provide Mr Kirby with a sufficient statement of the information upon which it relied to make that finding of fact to enable him to exercise that right of review.

58 Turning now to the second reason given by the Board, in this instance the Board did give notice of the only information upon which it had relied - namely, the CCTV record of the incident on 18 May 2009. Either that DVD was capable of sustaining the conclusion of fact at which the Board arrived, or it was not. That question could be readily assessed by Mr Kirby and his legal advisors by reference to a viewing of the DVD, without the need for any further information or elaboration of the process of reasoning by which the Board arrived at its factual conclusion. The Board's obligation to provide reasons for its decision is not to be equated with the obligations imposed upon a court from which an appeal lies on questions of fact. In this case, the second reason provided by the Board was sufficient to fulfil the various objectives which the statutory obligation to provide reasons was intended to fulfil.

59 Accordingly, for these reasons I conclude that the Board also failed to discharge its statutory obligation to provide Mr Kirby with a statement of reasons for its decision to cancel his parole in respect of that part of its reasons which related to his association with known offenders and outlaw motor cycle gang members.

60 It follows that Mr Kirby has established that the Board failed to comply with the obligations imposed by s 107B of the Act in three respects, namely:

(a) it failed to provide him with written notice of its decision to suspend his parole as soon as practicable after that decision was made;

(b) it failed to provide him with an adequate statement of the reasons for its decision to suspend his parole; and

61 As I observed in Mr Seiffert's case, as a consequence, Mr Kirby would be entitled to orders requiring the Board to remedy its omissions, insofar as they are now capable of remedy. Accordingly, orders could be made requiring the Board to provide an adequate statement of its reasons for suspending and cancelling Mr Kirby's parole. However, understandably, Mr Kirby does not seek relief of that kind because of its limited practical utility, as it would, at best, provide a basis for seeking a further review by the Board. Rather, as in Mr Seiffert's case, the relief which Mr Kirby seeks is focused upon setting aside the Board's decision to cancel his parole, which is then said to have the consequences which I have set out above.

62 As in Mr Seiffert's case, the first step in that process of reasoning requires Mr Kirby to establish that the Board's breach of the obligations imposed by s 107B of the Act invalidates its decisions to suspend and cancel his parole. However, for the reasons given in Mr Seiffert's case, I conclude that the discharge of the obligations imposed by s 107B of the Act is not a precondition to the valid exercise of the Board's jurisdiction to either suspend or cancel parole, and the inadequacy of the reasons given by the Board does not amount to nonjurisdictional error on the face of the record which might support the grant of certiorari. It follows that although Mr Kirby has established that the Board failed to comply with the obligations imposed by s 107B of the Act, he has failed to establish an entitlement to the relief which he seeks arising from those breaches.

Taking irrelevant considerations into account, failing to take relevant considerations into account, no evidence and unreasonableness

63 The arguments advanced on behalf of Mr Kirby in relation to taking into account irrelevant considerations, failing to take account of relevant considerations, no evidence and unreasonableness focus upon the two reasons given by the Board for its decision to cancel Mr Kirby's parole.

64 In relation to the reason given relating to Mr Kirby's alleged ongoing relationship with known offenders and outlaw motorcycle gang members, it is said that there is no evidence to support the finding of such a relationship, that the Board took account of irrelevant considerations (although no such considerations are identified in the grounds of review or advanced in argument), and failed to take account of relevant considerations, being the consideration that no condition was imposed upon Mr Kirby's parole precluding him from contacting motorcycle gang members, and the conclusion that this relationship created an increased risk of reoffending and thereby endangered the community was grossly unreasonable (in the Wednesbury sense).

65 As I noted in Mr Seiffert's case, the only consideration which the Act expressly required the Board to take into account at the time of cancelling Mr Kirby's parole was the safety of the community. The matters addressed in the Board's reasons are plainly relevant to that consideration. Accordingly, the propositions that the Board failed to take account of a consideration which it was required to take into account, or took irrelevant considerations into account must be rejected.

66 The assertion that there was no evidence upon which the findings of fact could be based must also be rejected. There was ample material in the reports provided to the Board by the community corrections officer supervising Mr Kirby's parole to provide evidence that he was in continuing association with motorcycle gang members. Further, it was clear from the materials before the Board that he was in association with Mr Littlefair, who was a known offender, and who was also on parole at the time of the Jandakot incident. Accordingly, there was evidence before the Board which was capable of sustaining its findings of fact, even though the Board failed to give Mr Kirby an adequate statement of the information upon which it had relied.

67 The proposition that the Board's conclusion that the finding it had made with respect to Mr Kirby's ongoing association with known offenders and outlaw motorcycle gang members increased the risk of his reoffending and thereby endangered community safety was so unreasonable as to fall outside the scope of the jurisdiction conferred upon the Board must be rejected. There is plainly a rational process of reasoning open to the Board from which it might be concluded that a continuing association with known criminals increased the risk of Mr Kirby reoffending.

68 Turning now to the second reason given by the Board, it is submitted that the video is incapable of sustaining the conclusion that Mr Kirby instigated violence, or that any such conclusion is grossly irrational and unreasonable. This proposition must be rejected. While there are a number of inferences open from a viewing of the video, the recorded actions of Mr Kirby plainly provide an evidentiary basis for a finding that Mr Kirby instigated violence through a process of reasoning which was rational and logical. Whether or not that finding should have been made was a question of fact for the Board, not for this court.

69 For these reasons, the various grounds of review grouped in this category must be dismissed. As in Mr Seiffert's case, in substance, the grounds amount to an assertion that the Board made errors of fact in arriving at its decision to cancel Mr Kirby's parole. Those are not assertions which fall within the scope of the court's jurisdiction to review decisions by administrative bodies such as the Board.

70 As I have indicated, and for the reasons I have set out above, Mr Kirby's claims for relief were focused upon orders directed to either acknowledging or effecting the invalidity of the decision of the Board to cancel his parole. However, although Mr Kirby has established that he was denied procedural fairness, for the reasons I have given he has not established any entitlement to relief on that ground. Further, although he has established that the no hearing rule adopted by the Board is unlawful and invalid, he has not succeeded in establishing that the Board's adoption of that rule gives rise to any entitlement to an order setting aside the Board's decision to cancel his parole. Although Mr Kirby has established that the Board failed to comply with some of the obligations imposed by s 107B of the Act at the time it decided to suspend and at the time it decided to cancel his parole, he has failed to establish that the Board's breaches of those obligations amounted to jurisdictional error, or to nonjurisdictional error on the face of the record which might entitle him to an order quashing the Board's decision to cancel his parole. It follows that Mr Kirby has failed to establish grounds for the relief which he primarily sought.

71 However, this is not to say that Mr Kirby may not be entitled to other forms of relief, including declaratory relief. In my view, the preferable course would be to invite submissions from the parties as to the appropriate form and terms of any such relief following publication of these reasons.

72 McLURE P: I have had the advantage of reading the reasons for decision of the Chief Justice. I am in general agreement with his reasons save on the grounds of appeal relating to the 'no oral hearing' policy. I would dismiss those grounds for the reasons I give in Seiffert v The Prisoners Review Board [2011] WASCA 148.

73 I wish to make some preliminary observations on aspects of the conduct of the chairperson in relation to the requested review of the Board's decision to suspend the appellant's parole. They are preliminary because the issues were not raised or addressed by the parties. A request

for a review was made by the appellant's solicitors in their letter of 26 May 2009. In support of the review application, the appellant relied upon developments that had occurred after the date of the suspension. That included the discontinuance of the indictable offences with which the appellant had been charged and the laying of an assault charge in lieu. By letter dated 3 December 2009, the chairperson advised the appellant that she had decided it would be in the interests of justice if, instead of conducting a review of the Board's decision to suspend parole, the appellant's case (together with that of Mr Littlefair) were referred to the Board for further consideration pursuant to s 115A(8)(c) of the Act.

74 In my view, it is arguable that a review under s 115A is concerned with whether the decision in question was correct when it was made (see Attorney General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, 539 540; McCormack v Commissioner of Taxation (2001) 114 FCR 574 [38] [40]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 [454], [457] [460]). If that is the case, new developments (not new evidence reflecting on the circumstances at the time the original decision was made) would be irrelevant to the review although they could be relied on in support of an application to the Board under s 40(1)(c) of the Act to cancel the suspension order before the end of the specified suspension period. It is also arguable that the power to refer the decision to the Board for further consideration under s 115A(8)(c) only arises after the chairperson has reviewed the decision in accordance with the obligation in s 115A(8).

75 MURPHY JA: I have had the advantage of reading the reasons for judgment of the Chief Justice. I am in general agreement with his reasons, save on the grounds of appeal relating to the 'no hearing' policy. I would dismiss those grounds of appeal for the reasons I give in Seiffert v The Prisoners Review Board [2011] WASCA 148.

CITATION : KIRBY -v- THE PRISONERS REVIEW BOARD [2011] WASCA 149 (S)

Consequential orders - Whether declaratory relief should be granted - Costs

1 JUDGMENT OF THE COURT: On 8 July 2011, this court published its reasons for the determination of the issues which had been raised by the order nisi. In short, although the applicant established that the Prisoners Review Board (the Board) had breached its statutory obligations by failing to provide him with notice of and a statement of reasons for its decision to suspend his parole as soon as practicable, and by failing to provide him with a proper statement of the reasons for its decision to suspend his parole and for one aspect of its decision to cancel his parole, he otherwise failed to establish any of the other grounds upon which the order nisi had been granted.

2 At the time of publishing its reasons, the court directed that the parties exchange written submissions with respect to the orders appropriately made to give effect to its reasons, and to advise the court whether they wished a further hearing in respect of the issues raised by those submissions. The applicant and the intervener have complied with those directions and advised the court that they do not require a further hearing in respect of those issues. Consistently with its approach to the proceedings to date, the Board has not participated in this process.

3 The applicant has filed a minute of proposed orders in the following terms:

It be declared that the obligation of the Respondent pursuant to section 107B of the Sentence Administration Act 2003 (WA) ('the Act') to provide to a prisoner reasons for any decision referred to in section 107(B)(1) made in respect of him or her, should state the conclusion(s) reached and, subject to section 114, set out the findings on material questions of fact and refer to the evidence or other material on which those findings based and, if relevant, the criteria against which the available information was judged.
It be declared that the Respondent failed to comply with the obligations imposed by section 107B of the Act in the following respects, namely by failing to provide the Applicant:

(a) with written notice of its decision on 25 May 2009 to suspend his parole as soon as practicable;

(b) with an adequate statement of reasons for that decision; and

(c) with an adequate statement of reasons for its decision on 17 December 2009 to cancel his parole.

It be declared that nothing in the Act or any delegated legislation made thereunder, prevents the decision-makers listed in sections 115 or 115A of the Act from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in those sections.
It be declared that no policy or approach put forward by the Chairperson of [the] Respondent, prevents the Respondent from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in section 115 of the Act or prevents the decision-makers referred to in section 115A from doing so in respect of any act, matter or thing under that section.
The order nisi be otherwise discharged.
Subject to paragraph 7 below, the Respondent pay the Applicant's costs, including any costs in respect of interlocutory matters, to be taxed if not agreed.
The Intervener pay the Applicant's costs set out in Kirby v Prisoners Review Board [2010] WASC 239 at [23], to be taxed if not agreed.
Alternatively to 6 and 7, Intervener pays the Applicant's costs, including any cost in respect of interlocutory matters, to be taxed if not agreed.

4 The orders sought by the applicant correspond very closely to the orders sought in the matter of Seiffert v The Prisoners Review Board which was heard at the same time as these proceedings. In those proceedings we are publishing reasons for our conclusion that the orders sought by the applicant in that case should not be granted. Those reasons apply with equal force to the orders sought by the applicant in this case save in respect of proposed order 2.

5 In relation to proposed order 2, Mr Kirby's circumstances are a little different to Mr Seiffert's in that (at least at the time of hearing) the Board has not reviewed the question of his parole. However, as with Mr Seiffert, there is no suggestion on behalf of Mr Kirby that the declaratory relief sought would have any practical utility or consequences. The decision of the Board to suspend his parole was, of course, overtaken by the decision of the Board to cancel his parole, so that the grant of declaratory relief in respect of the suspension decision lacks any practical utility. In relation to the cancellation decision, it is not suggested that the declaration as to the inadequacy of the reasons provided by the Board should be accompanied by an order directing the Board to provide a further statement of reasons, or that such a statement might be utilised by Mr Kirby to seek a review of the Board's decision. In those circumstances, the declaration sought is devoid of any practical utility and would have no foreseeable consequences or effect for the parties. Accordingly, proposed order 2 should not be made.

6 For those reasons, the orders appropriately made in this case are:

Order nisi discharged; and
No order as to costs.

Administration Act 2003

Sentencing Administration Act 2003(WA)

KIRBY -v- THE PRISONERS REVIEW BOARD [2011] WASCA 149 (8 July 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (106 paragraphs)

The failure of the Board to give notice in accordance with s 107B

Taking irrelevant considerations into account, failing to take relevant considerations into account, no evidence and unreasonableness

Legislation Cited (3)

Cases Cited (3)